n 


-;■;■:  •:■'!■■; 

II 

ill 


^.-3^- 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A 

M  -A.  N  XJ  A.  L 


GUARDIANS  AND  TRUSTEES 


MINORS,    INSANE     PERSONS,    IMBECILES,     IDIOTS,    DRUNK- 

ARDS,    AND   FOR   GUARDIANS    AD   LITEM,    RESI 

DENT    AND    NON-RESIDENT, 


A  FFECTEB   BY  THE 


LAWS    OF    OHIO. 

WITH 

Forms,  Notes  of  Decisions,  and  Practical  Suggestions. 

BY  * 

FLORIEN  GIAUQUE, 

Editor  of  "  Revised  Statutes  of  Ohio;"    Author  of  "A.  Manual  for  Assignees,"  etc. 


THIRD  EDITION. 


CINCINNATI: 
ROBERT  CLARKE  &  CO. 

IN!  H). 


Copyrighted,  i88l,  by 
ROBERT  CLARKE  &  CO. 


^ 


WM.  F.  MUCHMORE, 

—  LAWYER,— 

Room  47,  Wiggins  Block, 

CINCINNATI,  o. 


PREFACE  TO  THE  THIRD  EDITION. 


The  original  plan  of  the  first  edition  has  been  adhered  to  in  this 
edition,  the  principal  changes  made  having  been  rendered  necessary 
by  the  rather  numerous  amendments  to  old  laws  and  the  enactment 
of  new  ones,  or  by  decisions  of  important  questions  by  our  courts. 
Numerous  additional  notes  of  decisions  of  courts  of  last  resort  in  other 
states  and  of- our  courts  of  inferior  jurisdiction  have  been  added. 
Some  other  changes,  suggested  as  desirable  by  the  experience  of  the 
writer  and  others,  including  the  insertion  of  some  additional  forms, 
and  of  some  statutory  provisions  not  in  the  first  edition,  have  also 
been  made.  This  has  made  necessary  the  re-writing  of  considerable 
portions  of  the  book  and  the  insertion  of  some  new  pages. 

To  learn  what  changes  ought  to  be  made,  every  line  in  the  entire 
work  has  been  examined,  and  every  reference  has  been  verified. 

Florien  Gtauque. 
Cincinnati,  September,  1890. 

(iii) 


PREFACE 


Law  books  upon  special  subjects  of  importance,  if  so  prepared  as  to 
be  clear  and  trustworthy,  into  which  are  gathered  within  a  small  cora- 
pass  and  convenient  form  the  widely  scattered  statutory  provisions, 
and  at  least  the  more  important  general  principles  of  unenacted  law 
and  notes  of  decisions  pertaining  to  the  subject,  with  suitable  refer- 
ences to  the  authorities  relied  on,  are  a  great  convenience  to  even  the 
most  experienced  attorneys  and  officers  of  courts  having  access  to  the 
best  of  libraries,  to  say  nothing  of  the  less  favored  and  less  experi- 
enced, nor  of  other  persons  directly  interested  who  can  not  have  an 
attorney  constantly  within  reach  for  consultation. 

To  prepare  such  a  work  on  the  subject  of  guardianship  in  Ohio,  with 
suitable  forms,  practical  suggestions,  index,  etc.,  has  been  the  aim  of 
the  writer  since  this  volume  was  begun  and  announced.  For  this  pur- 
pose, it  has  been  necessary  to  examine,  with  care,  the  standard  works 
on  Trusts,  Trustees,  Domestic  Relations,  and  other  subjects  in  which 
guardianship  is  considered  directly  or  indirectly,  as  well  as  a  great 
many  cases  decided  by  the  courts  of  our  different  states  and  of  Eng- 
land, and  to  glean,  condense,  and  arrange  from  these  authorities  such 
matter  as  would  likely  be  most  useful,  and  yet  not  to  make  the  book  a 
large  or  expensive  one.  The  time  devoted  to  it  being  chiefly  outside 
of  usual  office  hours,  its  progress  was  not  as  rapid  as  was  hoped  at  first; 
and  when  almost  ready  for  the  press,  it,  with  considerable  other  manu- 
script, was  totally  destroyed  by  fire.  Its  data  had,  therefore,  to  be 
again  all  collected  as  at  first,  and  its  writing  done  a  second  time. 
These  are  the  causes  of  its  delay. 

T  ,e  writer  is  under  obligations  in  various  ways  relating  to  this  vol- 
ume*, to  Justice  Stanley  Matthews,  Hons.  Wm.  Lawrence,  W.  M.  Bate- 
man.  Rums  King,  S.  J.  Thompson,  Judge  Isaac  B.  Matson  and  Deputy 
Daniel  Herider,  of  the  Hamilton  county  Probate  Court,  M.  W.  Myers, 
librarian  of  the  Cincinnati  Law  Library,  and  others,  which  are  thank- 
fully acknowledged.  He  should  also  state,  that  for  the  sake  of  the 
forma  in  F.  J.  Matthews'  Guardian's  Guide,  its  copyright  was  pur- 
chased,  and  that  many  of  these  forms,  with  or  without  modifications, 
will  be  found  herein.  p    q 

Cincinnati,  May,  1881. 
(iv) 


CONTENTS. 


CHAPTER  1. 

Preliminary — Including  certain  Definitions,  and  a  Brief  Review  of 

English,  Civil  Law,  and  Ohio  Guardianships '.       1 


CHAPTER  2. 

Powers  and  Duties  of  Probate  Courts,  as  Affecting  Guardianship...        7 

CHAPTER  3. 
Appointment  of  Guardians 15 

CHAPTER  4. 
Resignation,  Removal,  Release,  etc.,  of  Guardian 40 

CHAPTER  5. 

General  Powers  and  Duties,  etc.,  of  Guardians :.     59 

CHAPTER  6. 
Sale  of  Ward's  Property 92 

CHAPTER  7. 
Lease  of  Ward's  Real  Estate 139 

CHAPTER  8. 
Taxation  and  Tax  Titles,  as  affecting  Guardian  and  Ward 144 

(v) 


VI  I  nNTENTS. 

CHAPTER  9. 
Account  and  Settlement,  and  Compensation  of  Guardian 150 

CHAPTER   L0, 

Bond — Exceptions  to — Release  from — Suits  on , 168 

CHAPTER  11. 
Partition 186 

CHAPTER  12. 

«  >ccupying  Clnimants  to  Peal  Estate — Rights  and  Obligations  of 
Guardians  and  Wards  who  are,  or  have  Claims  adverse  to, 
such  Claimants 196 

CHAPTER  13. 

Road  Laws,  etc.,  as  directly  affecting  Guardians  and  Wards 201 

CHAPTER  14. 
School  Laws,  as  affecting  Guardian  and  Ward 205 

CHAPTER  15. 
Apprenticeship  of  Ward 208 

CHAPTER   16. 

Charitable,    Reformatory,  and   Punitive  Institutions,  as  Affecting 

Guardianship  of  Minors,  etc 214 

CHAPTER   IT. 

Intoxicating  Liquors- — Duties,  Rights,  and  Liabilities  of  Guardians 
and  Wards,  with  reference  to  the  Sale  of  Intoxicating  Liquors, 
as  provided  in  Chapter  7,  Title  5,  Part  I,  Revised  Statute:- 221 


CONTENTS.  Vll 

CHAPTER  18. 
Real  Contracts  of  Ward's  Ancestor . 22b 

CHAPTER  19. 
Guardians  of  Lunatics,  Idiots,  and  Imbeciles 229 

CHAPTER  20. 
Guardians  of  Drunkards  249 

CHAPTER  21. 
Trustees  Generally,  and  their  Accounting 2o.'J 

CHAPTER  22. 
Trustees  for  Non-residents 264 

CHAPTER  23. 
Guardians  Ad  Litem 2.0 

CHAPTER  24. 
Appeals >••  280 

CHAPTER  2.3. 
Miscellaneous  Matters 285 

APPENDIX. 
Can  a  Married  Woman  be  a  Guardian? 297 


TABLE  OF  SECTIONS 

Of  the  Revised  Statutes  of  Ohio,  showing  page  on  which  found. 

Xote.  —The  page  referred  to  is  the  one  on  which  the  section,  or  quoted  part  of  it, 
ends,  and  on  which  the  number  of  the  section  may  be  found  in  the  foot-notes 
or  text. 


Sec. 

Page. 

Sec. 

Page. 

Sec. 

Page. 

Sec. 

Page. 

Sec. 

Page. 

4 

134 

21  <4 

218 

4517 

2S8 

51461 

5792 

199 

6 

36 

2185 

218 

4638 

201 

to  !> 

288 

5793 

199 

524 

10 

2213 

278 

4642 

201 

5161  j 

5794 

199 

52-5 

10 

2256 

282 

4645 

201 

5147 

28S 

5795 

199 

525 

97 

2262 

203 

4688 

202 

5227 

284 

5796 

200 

526 

10 

2263 

203 

4689 

202 

£228 

284 

5800 

226 

527 

10 

2272 

204 

4689 

282 

5228 

282 

5800 

250 

527 

97 

2613 

278 

4699 

202 

5228 

283 

5801 

226 

528 

10 

2656 

278 

4700 

202 

5241 

291 

5801 

239 

528 

11 

27:'>4 

146 

4701 

202 

5242 

292 

5802 

227 

530 

11 

27:;5 

147 

4744 

204 

5371 

181 

5803 

2s9 

532 

11 

2736 

147 

4745 

204 

5404 

120 

5806 

290 

533 

10 

2845 

144 

4774  1 
to  i- 

5404 

125 

5808 

290 

534 

12 

2846 

145 

203 

5404 

126 

5809" 

291 

635 

13 

2847 

144 

4864  J 

5410 

138 

5810 

291 

535 

28 

2848 

145 

4S54 

203 

5411 

138 

5811 

291 

540 

13 

2850 

146 

4836 

203 

5416 

120 

5833 

288 

584 

287 

2851 

146 

4859 

205 

5628 

271 

5835 

289 

753 

214 

285 1 

132 

4952 

33 

5628 

288 

5937 

243 

753 

215 

2854 

146 

4953 

32 

5629 

288 

6038 

294 

769 

215 

2890 

14^ 

4975 

288 

5675 

288 

6047 

258 

770 

215 

2891 

149 

4984 

180 

5679 

288 

6049 

258 

771 

215 

2946 

20 

4984 

181 

56s7 

288 

6050 

258 

77:  i 

215 

3120 

209 

4986 

180 

5707 

291 

6051 

258 

775 

216 

3121 

209 

4993 

182 

5714 

117 

6052 

258 

776 

216 

3122 

209 

4994 

178 

5717 

113 

6076 

39 

777 

216 

3123 

209 

4994 

179 

5719 

111 

6143 

293 

778 

216 

3126 

210 

4994 

182 

5720 

111 

6144 

110 

9291 

3127 

210 

4995 

182 

5721 

112 

6144 

275 

to  ;■ 

216 

3128 

210 

4998 

232 

5722 

244 

6144 

276 

956  J 

3129 

211 

5000 

233 

5723 

244 

6175 

254 

931 

216 

3134 

211 

5001 

233 

5724 

245 

6176 

254 

932 

217 

3136 

1 

5002 

23:: 

5725 

245 

617S 

258 

945 

217 

31371 

5003 

110 

5725a 

245 

6178 

259 

970 

246 

to  j> 

31  10  J 

287 

5003 

271 

5754 

188 

61S3 

254 

971 

247 

5004 

271 

5 ,  55 

189 

6189 

143 

972 

247 

3408 

295 

5004 

273 

5756 

ISO 

6189 

294 

1094 

147 

3S36 

69 

5007 

232 

5757 

189 

6195 

182 

1095 

147 

4014 

21 '5 

5012 

288 

5758 

190 

6202 

73 

1097 

148 

4026 

206 

5022 1 

5750 

190 

6203 

283 

1526 

248 

4027 

207 

to  i- 

181 

5760 

190 

6254 

16 

1744 

279 

4127 

286 

5032  J 

5761 

190 

6255 

23 

1752 

284 

412S 

286 

5037 

105 

5762 

191 

6255 

24 

2031  | 

[4029,-1]  1 
to    )■ 

5046 

105 

5763 

191 

6255 

70 

to  }• 

220 

206a 

5047 

101 

5761 

192 

6256 

28 

2107  J 

[4029.-13J  J 

51  MS 

107 

5765 

192 

6257 

25 

2050 

219 

4163 

138 

5048 

181 

5766 

192 

6258 

26 

2056 

219 

4275 

295 

5049 

108 

5767 

193 

6258 

151 

2060 

L<20 

1  .'7'-. 

295 

5050 

100 

576S 

193 

6250 

31 

2062  1 

4357 

222 

5i)51 

[1  0 

5769 

194 

6259 

41 

to  "> 

2066  J 

220 

4:.  5  s 

223 

51 1. ,  ; 

108 

5770 

191 

6260 

31 

1359 

223 

507S 

235 

5771 

194 

6260 

70 

21)71 

220 

■l  60 

223 

5078 

277 

5772 

1-7 

6261 

169 

2075 

220 

4361 

223 

5103 

112 

5773 

1SS 

6261 

170 

2076 

220 

4361 

22  1 

5103 

277 

5774 

195 

6261 

172 

2077 

220 

1362 

221 

5105 

102 

5786 

107 

6261 

174 

2181 

218 

4363 

224 

5107 

io.: 

5787 

197 

6262 

36 

2182 

218 

4361 

221 

5111 

288 

5788 

198 

6263 

32 

2183 

•J  IS 

4364 

225 

5115 

288 

5789 

198 

626  1 

61 

i  ami:  of  sections  of  revised  statutes. 


Table  of  Sections — Continued. 


Sec. 

Page. 

Sec. 

Page. 

Sec. 

Page. 

Sec. 

Page. 

Sec. 

Page. 

70 

6281 

'JS 

6302 

230 

6330 

257 

6415 

295 

6282 

99 

6303 

230 

6330 

259 

6474 

279 

6266 

6282 

102 

6303 

311 

6331 

261 

6481 

104 

6267 

■  7 

113 

6304 

231 

6332 

262 

6562 

284 

6268 

27 

628 1 

115 

6305 

232 

6333 

259 

6563 

284 

32 

6284 

116 

6306 

234 

6333 

263 

6570 

284 

6] 

6285 

lis 

6307 

2  15 

6334 

263 

6583 

to  y 

6269 

70 

6286 

120 

6308 

235 

6384 

70 

284 

6269 

150 

6286 

121 

6309 

235 

6390 

71 

6591 J 

6269 

151 

6287 

127 

6309 

236 

6400 

13 

6600 

138 

6269 

155 

6287 

131 

6310 

236 

6402 

161 

6718 

283 

6270 

69 

6288 

86 

6311 

238 

6402 

257 

6721 

295 

6270 

70 

6288 

159 

6312 

238 

6403 

162 

68 12 

296 

6271 

69 

151 

6313 

238 

6403 

257 

6856 

296 

6271 

70 

6289 

165 

631 1 

242 

6404 

13 

6984a 

296 

23 

6289 

166 

6315 

243 

6405 

13 

7106 1 

to  y 

6272 

28 

6290 

17 

6316 

243 

6406 

102 

296 

6272 

'J'.i 

6290 

136 

6317 

249 

6406 

105 

7116  J 

6272 

52 

6290 

286 

6318 

249 

6406 

170 

78131 

6272 

53 

6292 

.Ml 

6318 

251 

6407 

281 

to  y 

7829  J 

217 

6272 

151 

6292 

151 

6319 

252 

6408 

281 

6273 

L75 

6292 

311 

6320 

264 

cms 

282 

7866 

219 

6273 

177 

6293 

■jn.s 

6321 

265 

6409 

281 

7867  i 

219 

6274 

49 

6294 

148 

6322 

266 

6410 

282 

8903 

225 

6275 

54 

6295 

13'.) 

6322 

267 

6411 

103 

9172 

287 

6276 

52 

6296 

140 

6323 

2G7 

6411 

104 

9191 

287 

6277 

52 

6297 

140 

6323 

288 

6412 

104 

9206 

287 

6278 

52 

029s 

140 

6324 

267 

6412 

131 

95471 

6279 

72 

6298 

1-12 

632.5 

268 

6413 

68 

to  y 

286 

6280 

94 

6299 

143 

6320 

268 

64141 
to  > 

9563  J 

6280 

95 

6300 

143 

6328 

254 

295 

9549 

286 

6280 

'J  7 

6301 

143 

6329 

256 

6453  J 

9555 

287 

GUARDIANS   AND   TRUSTEES. 


CHAPTER  1. 

PRELIMINARY — INCLUDING    CERTAIN     DEFINITIONS,    AND     A    BRIEP 
REVIEW   OP   ENGLISH,  CIVIL   LAW,    AND   OHIO   GUARDIANSHIPS. 

Par.  Pah. 

1.  Who  are  minors?  10-11.  Guardian  by  nurture,  and  in 

'2.  Wards.  chivalry. 

3.  On  what  day  full  age  attained?       12.  These  two  included  in  guardian- 

4.  Guardians  generally.  ship  of  person. 

5.  Guardians  of  minors.  13-14.  Guardian  by  socage. 

6.  Brief  view   of   various  English     15-16.  Testamentary  guardians. 

guardianships.  17.  Chancery  guardians. 

7.  Guardians  by  nature.  18-19.  Guardianship  under  the  civil 
8-9.  As  a  natural  guardian  in  U.  S.  law. 

1.  Who  are  minors  f — All  male  persons  of  the  age  of  twenty- 
one  years  and  upwards,  and  all  female  persons  of  the  age  of 
eighteen  years  and  upwards  are,  by  the  laws  of  Ohio,  held  and 
considered  to  be  of  full  age,  to  all  intents  and  purposes,  any  law 
or  custom  to  the  contrary  notwithstanding.1  It  therefore  fol- 
lows that  all  male  persons  who  are  not  twenty-one  years  old,  and 
all  female  persons  who  are  not  eighteen  years  old  are  not  of  full 
age.2  Such  persons  are  called  minors  in  the  ordinary  language 
of  practical  life,  and  infants  or  minors  in  the  technical  language 
of  the  law,  these  two  words  being  used  as  having  the  same 
meaning.'1 

l\  3136. 

2  Previous  to  the  year  1834,  a  female  was  not  of  full  age  until  she  was 
twenty  one  years  old.     McClintick  v.  Chamberlain,  W.  547. 

By  the  laws  of  England  persons  of  either  sex  become  of  full  age  when 
twenty-one  years  old.  1  Blackstone's  Com.  463,  Tyler  Inf.  &  Cov.  34. 
This  is  the  case  also  in  probably  most  of  the  United  States. 

3 See  3  Redf.  on  Wills,  438,  note  9. 


2  PRELIMINARY,  ETC.  [dlAP.   1,  3-6 

2.  Ward. — A  minor  placed  by  authority  of  law  under  tho  care 
of  a  gnardian  is  called  a  ward. 

3.  On  what  day  full  age  attained. — It  appears  from  the  author- 
ities thai  a  male  person  is  of  full  age  the  day  before  the  twenty- 
first  anniversary  of  his  birth;1  and  it  follows  that,  in  Ohio,  a 
female  person  is  of  full  age  on  the  day  before  the  eighteenth 
anniversary  of  her  birth. 

4.  Guardians  generally. — A  guardian  is  one  who  legally  has 
the  care  and  management  of  the  person,  or  estate,  or  both,  of  a 
person  who  is  incompetent  to  manage  his  own  affairs.  Such 
incompetency  may  be  the  result  of  incapacity  imposed  by  nature 
or  by  law.  Hence  there  are  guardians  of  minors,  of  lunatics, 
of  idiots,  of  drunkards,  of  spendthrifts,  etc. 

5.  Guardians  of  minors.— Of  these,  the  most  important,  be- 
cause the  most  common,  are  the  guardians  of  minors.  Concern- 
ing ihi  'in  it  is  well  said  that  "  The  relation  of  guardian  and  ward 
is  nearly  allied  to  that  of  parent  and  child.  It  applies  to 
children  during  their  minority,  and  may  exist  during  the  lives 
of  the  parents;  but  usually  takes  place  on  the  death  of  the 
father,  and  the  guardian  is  intended  to  take  his  place.  If  an 
infant  have  property  and  no  guardian,  neither  the  parent  nor 
any  other  person  can  act  for  him  in  relation  to  such  property."3 

G.  Brief  view  of  various  English  guardianships. — As  our  law 
concerning  guardian  and  ward  is  chiefly  of  Engligh  origin,  it 
will  assist  in   better  understanding  certain   matters   connected 

1  Blackstone's  Com.,  page  463;  Sharswood's  note  thereto,  same  page, 
(citing  State  v.  Clarke,  3  Harring.  557;  Hamlin  v.  Stevenson,  4  Dana, 
597.) 

If  he  is  born  on  the  16th  of  February,  1808,  he  is  of  age  to  do  any  legal 
act  on  the  morning  of  the  15th  of  Februarj-,  1829,  though  he  may  not  have 
lived  twenty-one  3'ears  by  nearly  forty-eight  hours.  The  reason  assigned  is, 
that  in  law  there  is  no  fraction  of  a  day;  and  if  the  birth  were  on  the  last 
second  of  one  day,  and  the  act  were  on  the  last  second  of  the  preceding  day 
twenty-one  years  after,  then  twenty-one  years  would  be  complete;  and  in 
the  law  it  is  the  same  whether  a  thing  is  close  upon  one  moment  of  the  day 
or  on  another.  Christian's  note  to  same,  same  page:  (citing  1  Sid,  162;  1 
Keb.  589;  1  Salk.  44;  Raym.  84.) 

See  also,  to  same  effect,  Schouler's  Dom.  Rel.  518,  519;  Tyler  on  Inf.  and 
Cov.  34 ;  Jarman  on  Wills,  Am:  Ed.,  30. 

*2  Kent's  Com.  220 ;  Swan's  Treatise,  587.     See  par.  8,  below. 


CHAP.  1,  7-8.]  PRELIMINARY,  ETC.  3 

with  ur  statutory  provisions,  and  others  not  there  mentioned, 
to  take  a  brief  view  of  the  different  kinds  of  guardians  known 
to  English  law. 

7.  Guardians  by  nature. — The  guardian  by  nature  is  the 
father,  and  in  case  of  his  death,  the  mother,  and  at  her  death, 
the  next  of  kin.  It  extends  only  to  the  person,  and  not  to  the 
estate,  and  continues  till  the  ward  is  twenty-one  years  of  age. 
It  extends  only  to  the  oldest  son,  as  he  is  the  heir-apparent  by 
the  English  law,  and  inherits  all  his  father's  estate.  Such  guar- 
dian is  subject  to  the  court  of  chancery,  which  might,  for  a  just 
cause,  interpose  and  control  his  authority.1 

S.  As  to  natural  guardian  in  U.  S. — In  this  country  the 
father  is  the  guardian  b}T  nature,  not  of  his  oldest  son  only, 
but  of  all  his  children,  and  in  case  of  his  death,  the  mother  is 
their  natural  guardian,  during  their  minority.3  But  such  guar- 
dianship gives  to  neither  of  them  any  right  to  manage  the  estate 
ur  otherwise  meddle  with  the  property  of  the  child,  and  extends 
only  to  the  custody  and  control  of  the  person  of  the  infant,  and  to 
his  maintenance,  support,  and  education.3 

9.  On  principle,  it  would  seem  that  the  mother  becomes  the 

xCoke  Litt.  88;  2  Kent's  Com.  220,  221;  Reeve's  Dom.  Rel.  314,  315; 
Bouv.  Law  Diet.  Art.  "Guardian";  1  Bl.  Com.  461,  Har.  note.  Page  22 
hereof. 

2 2  Kent's  Com.  220;  Reeve's  Dom.  Rel.  315;  Bouv.  Law  Die.  "Guar- 
dian;" Schouler's  Dom.  Rel.  406;  3  Redneld  on  Wills,  435;  Tyler  on  Inf. 
and  Cov.j  166,  p.  242. 

Mr.  Francis  Hargrave,  the  learned  annotator  of  Co.  Litt.,  holds  that  the 
term  natural  guardian  or  guardian  by  nature,  when  not  applied  to  an  heir- 
apparent,  signifies  only  that  nature  points  out  the  parent  as  the  proper 
guardian  where  positive  law  is  silent.     Steph.  Note  to  1  Black.  Com.  461. 

The  mother  is  the  natural  guardian  of  lier  illegitimate  child.  Wright  v. 
Wright,  2  .Muss.  109;  Somerset  v.  Dighton,  12  Mass.  383;  Hudson  v.  Hills, 
8  N.  H.  417;  People  v.  King,  6  Barb.  366;  Dalion  v.  State,  6  Blackf.  357; 
Fields  v.  Law,  2  Hoot  (Conn.),  320;  Reeves'  Dom.  Rel.  315  note.  B"uv. 
Law  Die.  646;  Shouler's  Dom.  Rel.  *406;  Tyler  on  Inf.  &  Cov.,  \  166; 
3  Redfield  on  Wills,  435. 

■•1  Kent's  Com.  220,  22;  3  Red.  on  Wills,  436;  Schoal.  Dom.  Rel.  333-4, 
391,  392;  Bouv.  Law  Die  ,  "Guardian,"  par.  5,  this  chap.;  par.  14,  chap.  :'». 
Also  Williams  v.  Storrs,  6  Johns.  (N.  Y.)  Ch.  353;  Miles  v.  Boyden  3  Pick. 
(Mass.)  213;  Dagley  v.  Talferry,  1  P.  Wms.  285;  Ross  v.  Cobb,  9  Yenr. 
(Tenn.)  463;  Anderson  v.  Darley,  1  Mott  &  McC.  369;  Miles  v  Kaigler,  10 
Yerg.  (Tenn. )  10  ;  May  v.  Caldor,  2  Mass.  55;  Gerrett  v.  Tallmadge,  1  Johns. 
(N.  Y.)  3;  Combs  v.  Jackson,  2  Wend.  (N.  Y.)  153;  Hyde  v.  Stone,  7  do. 


4  PRELIMINARY,    ETC.  [CHAP.  1 ,    10-14. 

guardian  by  nature  of  the  children  whose  custody  is  awarded 
to  her  because  of  her  husband's  personal  unfitness.1 

10.  Guardian  by  nurture  and  in  chivalry. — The  guardian  by  na- 
ture occupied  much  the  same  relations  to  his  (or  her)  younger 
children  thai  he  <lid  to  the  heir-apparent,  and  was  called  their 
guardian  by  nurture. 

11.  As  propert}-  has  always  descended  here  to  all  the  children, 
instead  of  to  the  eldest  son,  this  species  of  guardianship  has 
never  been  in  existence  here.2  Nor  has  that  in  chivalry,  which 
has  long  been  abolished  even  in  England,  and  therefore  needs  no 
description   now.3 

12.  These  two  included  in  guardianship  of  person.  To  what  ex- 
tent these  technical  guardianships  "  by  nature  "  and  "  by  nur- 
ture" ever  existed  in  this  State  need  not  be  discussed  here.  Our 
guardianship  "  of  the  person  "  includes  all  the  powers  of  both,  as 
far  as  they  could  be  in  force  under  our  laws  and  institutions.* 

13.  Guardian  by  socage. — Such  a  guardian  has  custody  of  the 
infant's  lands  as  well  as  of  his  person.  It  applies  only  to  lands 
which  the  infant  acquires  by  descent.  The  common  law  gave 
this  guardianship  to  the  next  of  blood  to  the  child,  to  whom  the 
inheritance  could  not  possibly  descend.  Such  guardianship  ceases 
when  the  child  arrives  at  the  age  of  fourteen  years,  if  he  then 
chooses  another  guardian,  which  he  has  the  right  to  do;  and  in 
that  case  the  guardian  in  socage  must  account  to  the  ward  for 
the  rents  and  profits  of  his  estate.5 

14.  The  question  as  to  whether  this  species  of  guardianship 
exists  in  Ohio6  has  been  raised  in  some  of  our  courts,  but  not  de- 

354;  Fonda  v.  Van  Home,  15  do.  631;  Kline  v.  Beebe,  6  Com.  494;  Ken- 
dall v.  Miller,  9  Cal.  591;  McGruder  v.  Peter,  4  Gill  &  J.  (Md.),  323. 

But  see  Wilson  v.  Bayer,  1  Har.  &  S.  (Md. )  297;  par.  56,  Appendix. 

The  surviving  parent  is  the  natural  gnardian  of  a  minor  child.  McKin- 
ley  v.  Noble,  37  Tex.  731. 

1  Schouler's  Dom.  Rel.  406;  same,  338,  339,  391. 

22  Kent's  Com.  222;  Reeve's  Dom.  Rel.,  315;  Tyler  on  Inf.  and  Cov., 
§167;  Bouv.  Law  Die,  "  Guardian,"  and  American  cases  there  cited. 

'Reeve's  Dom.  Rel.  311. 

4  See  chapter  5. 

6  2  Black.  Com.  87, 88;  2  Kent's  Com.  221-223;  Bouv.  Law.  Die,  "Guardian." 

•Wirt  v.  Turner  (Lorain  Dist.  Court,  1858),  1  W.  L.  M.  94. 


CHAP.  1,  15-17.]  PRELIMINARY,  ETC.  5 

cided.    In  New  York,  since  the  adoption  of  the  .Revised  Statutes, 
a  father  ma}7  be  guardian  in  socage  in  that  State.1 

15.  Testamentary  guardians. — This  species  of  guardianship 
was  instituted  by  a  statute2  passed  in  the  reign  of  Charles  II.  It 
provided  that  any  father,  whether  of  full  age  or  not,  might,  by 
deed  or  by  last  will,  dispose  of  the  custody  and  tuition  of  his 
child,  born  or  unborn,  to  any  person  or  persons  in  possession  or 
remainder,  other  than  popish  recusants;  such  custody  to  last  till 
the  child  attained  the  age  of  twenty-one  years,  whether  he  marry 
or  not,  or  for  a  less  time.  It  gave  the  guardian  the  entire  manage- 
ment of  the  ward's  estate,  both  real  and  personal.  All  religious 
disabilities,  and  the  power  of  an  infant  father  to  appoint,  have 
since  been  removed.3  But  a  mother  can  not  appoint,  nor  can  a 
putative  father,  nor  a  person  in  loco  parentis. * 

16.  The  statutes  of  Ohio  provide  for  the  appointment  of  tes- 
tamentary guardians5  by  will  but  not  by  deed.  Though  these 
statutes  use  the  word  "appoint,"  yet,  strictly  speaking,  the 
parent  can,  with  us,  only  nominate  a  guardian,  whom  it  is  the 
duty  of  the  court  to  appoint,  if,  in  the  opinion  of  the  court,  he 
be  a  suitable  person. 

17.  Chancery  guardians. — The  chancery  courts  of  England, 
chiefly  since  the  settlement  of  the  United  States  by  the  colonies 
of  that  country,  have  assumed  and  now  exercise  the  right  of  su- 
pervision, control  and  removal  of  all  guardians,  and  of  appoint- 
ing them  when  such  appointment  is  not  otherwise  provided  for; 
and  in  these  respects,  and  in  providing  suitable  maintenance  for 
infants,  in  awarding  custody  of  their  person,  and  in  superintend- 
ing the  management  and  disposition  of  their  estates,  these  courts 
wield  large  powers  for  the  benefit  of  the  young  and  helpless,  and 
adapt  themselves  far  more  readily  to  the  various  grades  of  so- 
ciety, the  different  varieties  of  property,  and  the  needs  of  the 
minors  themselves,  than  can  be  done  by  all  other  kinds  of 
guardianships  combined.      Chancery  guardians  are,  in  general, 

1  Fonda  v.  Van  Home,  15  Wend.  (N.  Y.),  631. 
2 12  Car.  II.,  c.  24. 

3  31  Geo.  III.,  c.  32;  1  Vic,  c.  26. 

4  2  Kent's  Com.  224;  Reeve's  Dom.  Rel..  328;  Bouv.  Law  Die,  "Guar 
ilian;  "  Schouler's  Dom.  Rel.  394;  and  the  cases  there  cited. 

5  See  par.  25,  page  26. 


6  PRELIMINARY,  ETC.  [CHAP.   1,  18-19. 

only  appointed  where  there  is  property,  as  such  a  step  can 
scarcely  be  necessary  otherwise  ;  hut  the  court  compels  them  ta 
give  Becurity  to  invest  under  its  direction,  and  to  keep  regular 
accounts.1 

18.  Guardianship  under  the  civil  law. — The  laws  of  guardian, 
ship,  as  is  true  of  other  laws  both  of  England  and  the  United 
States,  are  not  without  the  strong  impress  of  the  laws  of  the 
Roman  Empire,  the  fountain  of  the  civil  law  as  in  force  in 
France, Spain  and  other  nations  of  Europe,  through  which  chan- 
nels it  has  come  to  be  in  force  in  our  French  and  Mexican  ac- 
quisitions of  Louisiana,  Texas,  etc.  By  that  law  a  tutor  had 
charge  of  the  maintenance  and  education  of  the  minor,  while  a 
curator  had  the  care  of  his  fortune.2 

19.  We  readily  recognize  the  similarity  between  these  and  our 
own  guardian  of  the  person  and  guardian  of  the  person  and  estate, 
though  the  likeness  is  not  complete. 

1  Schouler's  Dom.  Rel.  396,  397  ;  2  Kent's  Com.  163  and  notes ;  Reeve's 
Dom.  Rel.  317. 

'  The  jurisdiction  of  a  court  of  chancery  extends  to  the  care  of  the 
person  of  the  infant  so  far  as  is  necessary  for  his  protection  and  edu- 
cation, and  to  the  care  of  his  property,  for  its  management  and  pre- 
servation and  proper  application  for  his  maintenance.  It  is  upon  the 
former  ground  that  the  court  interferes  with  the  ordinal-}'  rights  of  parents 
as  guardians  by  nature  or  by  nurture;  for  whenever  a  father  is  guilty  of 
gross  ill-treatment  of  or  cruelty  to  his  children,  or  is  in  constant  habits  of 
drunkenness  or  blasphemy,  or  low  and  gross  debauchery,  or  professes  athe- 
istical or  irreligious  principles,  or  his  domestic  associations  are  such  as  tend 
to  the  corruption  and  contamination  of  his  children,  the  court  will  interfere 
and  deprive  him  of  the  custody  of  the  infants,  appointing  at  the  same  time 
a  suitable  person  to  act  as  guardian  and  superintend  their  education.  And 
this  interference  maybe  obtained  on  the  petition  of  the  infant  himself,  or 
of  any  of  his  friends  or  relatives  :  nay,  a  mere  stranger  may  at  any  time  set 
the  machinery  of  the  courts  in  motion.  1  Black.  Com.  162,  part  of  Kerr'a 
note. 

2 1  Black.  Com.  460. 


CHAP.  2,  1.]  DUTIES   OF    PROBATE    COURTS. 


CHAPTER  2. 

POWERS    AND    DUTIES   OP    PROBATE    COURTS,  AS    AFFECTING   GUARD- 
IANSHIP. 

Par.  Par. 

1.  Their   jurisdiction     generally.  18.  Guardianship,     etc.,    when     the 
2-5.  Exclusive  jurisdiction.  probate  judge  is  interested, 

6.  Concurrent  jurisdiction.  etc. 

7.  Oaths     to      accounts,    petitions,  19.   Questions     arising     in     probate 

etc.  court — how  determined. 

8-14.  What  books  are  kept.  20.  Depositions    may    be    used     in 

15.  Probate   judge    must    make    all  probate  court  trials. 

entries,  records,  etc.,  omitted  21.  Sheriffs,    constables,    etc.,    must 
by  his  predecessor.  serve  in  probate  court. 

16.  How  paid.  22.  Fees  of  witnesses,    officers,  etc., 

17.  No  probate  judge  or  his  clerk  in  such  court. 

can  prepare  any  papers,  etc.,  23-24.  General     duties    of    probate 
for  guardian.  judges. 

1.  Their  jurisdiction  generally.  The  constitution  of  this  state1 
provides  that  the  probate  court  shall  have  jurisdiction  in  probate 
and  testamentary  matters,  the  appointment  of  guardians,  the  set- 
tlement of  their  accounts,  the  sale  of  land  by  guardians,  and  such 
other  jurisdiction,  in  any  county  or  counties,  as  may  be  provided 
by  Jaw.2 

*Art.  iv,  ?8. 

2 The  probate  courts  of  this  state  are,  in  the  fullest  sense,  courts  of  record; 
they  belong  to  the  class  whose  records  import  absolute  verity,  that  are  com- 
petent to  decide  oh  their  osvn  jurisdiction,  and  to  exercise  it  to  final  judg- 
ment, without  setting  forth  the  facts  and  evidence  on  which  it  is  rendered. 
Shroyer  v.  Richmond,  16  0.  S.  455. 

The  act  of  January  9,  1871  (68  v.  6),  conferring  jurisdiction  upon  courts 
of  common  pleas  to  appoint  guardians  of  the  property  of  persons  incapable 
of  taking  care  of  and  preserving  their  property,  by  reason  of  intemperance 
and  habitual  drunkenness,  is  not  in  conflict  with  the  provisions  of  this  sec- 
tion defining  the  jurisdiction  of  probate  courts.  Hagany  v.  Cohnen, 
29  0.  S.  82. 

This  jurisdiction  may  be  extended  to  all  the  counties  in  the  state  by 
a  general  enactment.     "The  words,  'in  any  county  or  counties,'  were  prob- 


8  DUTIES    OP    PROBATE   COURTS.  [CHAP.    2,  2-3. 

2.  Exclusive  jurisdiction.  The  statutes  provide  that  the  pro- 
bat.'  court  has  exclusive  jurisdiction  in  certain  matters,  among 
which  are  the  following  : 

3.  To  appoint  and  remove  guardians,1  to  direct  and  control 
their  conduct,  and  to  settle  their  accounts;2 

ably  used  rather  as  enabling  than  restrictive  language,  and  were  designed 
to  permit  the  general  assembly — notwithstanding  the  provisions  of  the 
twenty-sixth  section  of  the  second  article,  requiring  all  laws  of  a  general 
nature  to  have  uniform  operation  throughout  the  state— in  its  discretion,  to 
confer  upon  the  probate  court  more  extended  powers  in  some  counties  than 
in  others.  Upon  the  opposite  construction,  a  power  to  confer  the  jurisdic- 
tion in  one  county  by  a  local  enactment,  is  a  power  to  confer  it  in  all  the 
counties  in  the  same  manner;  which  brings  us  to  the  absurd  conclusion  that 
the  legislature  is  competent  to  do  by  ninety  laws  what  it  is  incompetent  to 
do  by  one."  Giesy  v.  C.;  W.  &  Z.  R.  R.  Co.,  4  0.  S.  308-320— Ranney,  J. 
"  A  jurisdiction  may  be  given  to  the  probate  court  in  one  county  which  is 
not  conferred  in  another;  but  this  express  exception  relates  only  to  the  ex- 
tent of  the  jurisdiction  of  the  probate  court.  The  whole  object  of  the  sec- 
tion is  to  define  the  limits  of  its  jurisdiction;  it  treats  of  nothing  else,  and 
does  not  once  name  the  courts  o£  common  pleas.  Nor  does  it  follow  as  a 
necessary  conclusion  that  because  the  jurisdiction  of  the  probate  court  may 
be  more  extensive  in  one  county  than  in  another,  the  jurisdiction  of  the 
courts  of  common  pleas  must  also  differ  in  extent.  The  latter  may  be  uni- 
form and  the  former  not.  The  probate  court  may,  in  some  counties,  possess 
a  jurisdiction  concurrent  with  the  common  pleas,  which  is  denied  to  it  in 
others."  Kelley  v.  State,  6  0.  S.  269-273— Scott.  J.;  and  see  Art.  2, 
§26,  note  1. 

1  Children  of  divorced  parents,  appointment  of  guardians  for,  powers  of 
probate  and  higher  courts  as  to.  From  an  examination  of  the  case  of 
H-  v.  H.  (1*0.  S.  427),  it  appears  that  in  1859  the  court  of  common  pleas 
of  Lucas  county  granted  to  Mary  Hoffman  a  divorce  from  her  husband, 
John  Hoffman,  and  also  the  "custody,  care  and  control"  of  certain 
minor  children  of  the  parties.  In  1861,  John  Hoffman  filed  his  peti- 
tion in  the  probate  court  of  said  county,  and  procured  to  be  issued  thereon 
a  writ  of  habeas  corpus  for  said  minors,  by  the  probate  judge,  alleging  in 
said  petition  that  said  Mary  has  not  the  means  to  support  the  children,  and 
that  she  is  a  person  of  temper  and  habits  unsuitable  to  have  the  care  and 
nurture  of  them  ;  that  she  is  profane  and  vulgar,  and  keeps,  and  allows  the 
children  to  keep  immoral  company  and  associations;  that,  on  the  other 
hand,  he  has  the  means  to  support  the  children,  and  is,  in  all  respects,  a 
suitable  and  proper  person  to  have  their  care  and  custody.  Upon  the  hear- 
ing of  the  case,  he  also  filed  a  motion  that  he  be  appointed  "guardian  of 
-This  jurisdiction  is  exclusive.  Newton  v.  Hammond,  38  O.  S.;  Gorman 
v.  Taylor,  4:;  <  >.  S.  86.     See  notes,  p.  151. 


CHAP.  2,  4.]  DUTIES    OF    PROBATE    COURTS.  9 

4.  To  make  inquests  respecting  lunatics,  insane  persons,  idi- 

the  said  children,  for  the  reasons  stated  in  the  petition  for  habeas  corpus 
on  file." 

In  opposition  to  the  claims  of  the  father,  the  mother  set  up  the  decree  of 
the  court  of  common  pleas,  claiming,  among;  other  things,  "  that  said  judg- 
ment and  decree  were  final,  and  forever  binding  upon  the  parties  thereto, 
and  that  in  and  bjr  it  were  determined  and  settled  the  several  matters  and 
things  sought  to  be  investigated  by  the  said  John  Hoffman  in  this  proceed- 
ing and  that  the  same  facts  which  did  exist  at  the  time  of  rendering  said 
judgment  and  decee,  and  upon  and  in  accordance  with  which  the  same 
were  rendered  and  given  by  said  court,  still  exist,  and  no  new  fact  or  facts 
have  since  transpired  or  arisen  which  authorize,  or  give  any  right  or  power 
to  any  one  whomsoever,  in  any  way  to  interfere  with  or  call  in  question  any 
of  the  rights  or  powers  given  to  this  respondent  by  said  judgment  or  de- 
cree; "  and  moved  the  probate  court  to  "  dismiss  and  discharge  the  proceed- 
ings, for  reason  that  the  judgment  and  decree  set  up  .  .  is  final  and 
conclusive,  and, can  not  be  impeached  or  inquired  into  in  this  case." 

The  probate  court  proceeded  to  judgment,  and  found  "from  testimony  re- 
lating solely  to  facts  transpiring  since  the  decree  of  divorce  .  .  set  forth 
(no  other  testimony  having  been  offered  by  the  parties,  nor  admitted  by  the 
court),  that  the  respondent,  Mary  Hoffman,  is  an  unsuitable  person  to  have 
the  care,  custody  and  tuition  of  said  children  now  before  the  court  by  the 
writ  of  habeas  corpus,  and  that  the  relator,  John  Hoffman,  is  a  suitable  per- 
son to  have  the  care,  custody  and  tuition  of  said  children,"  and  that  the  in- 
terest and  welfare  of  the  children  required  that  the  said  John  Hoffman 
should  have  the  custody  of  them,  and  that  therefore  the  children  are  unlaw- 
fully detained  by  the  mother.  Therefore  the  probate  court  appointed  said 
John  guardian  of  the  children,  and  ordered  the  sheriff  to  deliver  them  into 
his  custody,  there  to  remain. 

The  case  was  taken  up  to  the  district  court  of  Lucas  county,  which  af- 
firmed the  judgment  and  order  of  the  probate  court.  It  was  then  taken  to 
the  supreme  court,  which  decided,  in  1864,  that  where  a  court  of  common 
pleas,  on  rendering  a  decree  of  divorce,  further  decree  the  "  custody,  care 
and  control  "  of  the  minor  children  of  the  marriage  to  one  of  the  parties,  a 
probate  court,  while  such  decree  remains  in  force,  can  not,  as  between  the 
parties  to  the  decree,  legally  interfere  with  the  custodj'  so  decreed,  either  by 
habeas  corpus  or  letters  of  guardianship;  and  that  the  jurisdiction  of  the 
court  of  common  pleas  over  the  subject  of  the  custody  of  children  in  di- 
vorce cases  is  a  continuing  jurisdiction  ;  and  that  such  common  pleas  court 
may,  on  proper  application,  be  invoked  to  modify  orders  originally  made  in 
respect  to  the  custody  of  children,  whenever  the  character  and  circum- 
stances of  the  case  or  of  the  parties  require  it. 

There  seems  to  be  nothing  in  this  case  that  could  be  construed  to  prevent 


10  DUTIES    OF   PROBATE    COURTS.         [CHAP.    2,5-12. 

ots,  and  deaf  and  dumb  persons,  subjed  by  law  to  guardian- 
ship.1 

T).  The  jurisdiction  acquired  by  any  probate  court  over  a  mat- 
ter or  proceeding,  is  exclusive  of  that  of  any  other  probate  court, 
Ht  where  otherwise  provided  by  law.2 

6  Concurrent  jurisdiction.  The  probate  court  has  concurrent 
jurisdiction  in  the  sale  of  lands  on  petition  of  executors,  admin- 
istrators and  guardians,  and  the  assignment  of  dower  in  such 
ca-  -  of  sale.3 

7.  Oaths  to  accounts,  petitions,  etc.  Probate  judges  may  admin- 
ister oaths  in  all  eases  where  oaths  are  authorized  by  law;4  and 
their  deputy  clerks  are  authorized  to  administer  oaths  in  all 
cases  in  which  it  is  necessary  in  the  discharge  of  his  duties  as 
such  deputy  clerk.5 

8.  What  books  are  kept.  The  probate  court  must  keep,  among 
others,  the  following  books:6 

0.  A  guardians'  docket,  showing  the  name  of  each  ward  (and 
if  an  infant,  his  age,  and  the  name  of  his  father),  the  amount 
of  bond  and  names  of  sureties  therein,  containing  a  minute  of 
the  time  of  filing  every  paper,  and  brief  note  of  every  order  or 
proceed i ng  relating  to  the  estate,  with  reference  to  the  journal 
or  record  in  which  the  order  or  proceeding  is  found.6 

10.  A  civil  docket,  in  which  must  be  noted  the  names  of  par- 
lies to  all  actions  and  proceedings:  it  must  also  contain  a  minute 
of  the  time  of  the  commencement  of  such  actions  and  proceed- 
ings, and  filing  the  papers  relating  thereto,  and  also  a  brief  note 
of  all  orders  made  in  such  action,  proceeding,  or  matter,  and  the 
time  of  entering  the  same.6 

11.  A  journal,  in  which  must  be  kept  minutes  of  all  official 
business  transacted  in  the  probate  court  or  by  the  judge,  in  all 
civil  actions  and  proceedings.6 

12.  A  final  record,  which  must  contain  a  complete  record  in  each 
cause  or  matter  of  ail  petitions,  answers,  demurrers,  motions,  re- 
turns, reports,  verdicts,  awards,  orders,  and  judgments;  which 
record  must  be  made  up  and  completed  within  ninety  days  after 
the  final  order  or  judgment  has  been  made  in  any  of  said  matters; 

the  probate  court  from   appointing  a  guardian  of  the  estate  only  of  such 
children,  as  this  would  not  interfere  with  their  custody. 
l§524.  2§527.  3§525.  «§526.  5§533.  a  §  528. 


CHAP.  2,  13-17]         DUTIES  OF  PROBATE  COURTS.  11 

and  he  must  also,  within  thirty  days  after  the  return  of  the  same, 
record  all  inventories,  sale  bills,  and  allowances  to  widows,  in  a 
book  provided  for  that  purpose.1 

13.  A  record  of  accounts,  which  must  contain  an  entry  of  the 
appointment  of  executors,  administrators,  and  guardians,  and 
all  partial  and  final  accounts  of  the  same,  and  the  orders  and 
proceedings  of  the  courts  thereon,  within  sixty  days  after  the 
filing  and  approval  thereof1 

14.  A  record  of  bonds,  in  which  must  be  recorded  all  bonds 
of  executors,  administrators,  guardians,  trustees,  and  assignees 
which  have  been  taken  and  approved  by  him.1 

15.  Probate  judge  must  make  all  entries,  records,  etc.,  omit- 
ted by  his  predecessor.  When  a  probate  judge,  whether  elected 
or  appointed,  enters  upon  the  discharge  of  his  duties,  he  must 
make  all  proper  and  necessaiy  entries,  indexes,  and  records 
of  the  business,  or  any  portion  thereof,  transacted  in  the  court, 
during  the  continuance  in  office  of  any  former  judge  thereof, 
which  had  not  been  made,  as  required  by  law,  by  the  probate 
judge  whose  duty  it  was  to  make  such  entries  or  records ;  and 
when  so  made,  they  will  have  the  same  validity,  force,  and  effect, 
as  though  they  had  been  made  at  the  proper  time,  as  prescribed 
Dy  law.  and  by  the  officer  whose  duty  it  was  to  make  them ;  and 
such  probate  judge  must  sign  all  entries  and  records  made  by 
him,  as  aforesaid,  as  though  such  entries,  proceedings,  and  records 
had  been  commenced,  prosecuted,  determined,  and  made  before 
him.2 

16.  Bow  paid.  The  county  treasurer,  and  not  the  guardian, 
must  pay  for  the  services  mentioned  in  the  preceding  paragraph, 
if  they  have  already  been  once  paid  for.3 

17.  No  probate  judge  or  his  clerk  can  prepare  any  papers,  etc..  for 
guardian.  No  judge  of  a  probate  court,  or  any  deputy  clerk 
employed  by  him,  or  who* is  engaged  in  the  business  of  such 
court  as  clerk  thereof,  is  permitted,  during  the  term  of  his  office, 
or  employment,  to  practice  law,  or  to  be  associated  with  another 
as  partner  in  the  practice  of  law,  in  any  of  the  courts  or  other 
tribunals  of  this  state;  neither  can  such  judge  or  clerk  prepare 
any  petition  or  answer,  or  make  out  any  account  which  any  ex- 

x§528.  2§530.  3?532. 


. 


12  DUTIES  OP  PROBATE  COURTS.  [CHAP.  2,  18. 

c<  liter,  administrator,  guardian,  or  other  person  is  required  to 
presenl  for  the  settlement  of  the  estate  committed  to  his  care 
and  management  ;  nor  can  such  judge  or  deputy  clerk  make  a 
record  of  any  paper,  receipt,  or  voucher,  produced  to  verify  any 
charge  or  credit  in  the  account,  filed  or  presented  for  settlement 
as  aforesaid,  unless  the  recording  thereof  is  requested  in  writing 
by  the  party  making  such  settlement;  but  nothing  contained  in 
this  paragraph  will  be  so  construed  as  to  prevent  any  probate 
judge  or  deputy  clerk,  aforesaid,  from  finishing  any  business  by 
him  commenced  before  his  election  or  appointment,  not  connected 
with  his  official  business.1 

IS.  Guardianship,  etc.,  when  the  probate  judge  is  interested,  etc. 
Letters  of  guardianship  can  not  be  issued  to  any  person  after 
his  election  to  the  office  of  probate  judge  and  before  the  expira- 
tion of  his  term  of  office;  and  if  a  probate  judge  is  interested, 
as  heir.  legatee,  devisee,  or  in  any  other  manner  in  an}'  estate 
which  would  otherwise  be  settled  in  the  probate  court  of  the 
country  where  he  resides,  such  estate,  and  all  accounts  of  guar- 
dians in  which  the  probate  judge  is  interested,  must  be  settled 
by  the  court  of  common  pleas  of  such  county;  and  in  all  such 
matters  and  cases  in  which  the  probate  judge  is  interested,  the 
original  papers  must  be  by  him  forthwith  certified  to  the  court 
of  common  ]>Ie;is  ;  and  in  all  other  matters  and  proceedings, 
pending  in  any  probate  court,  which  would  properly  be  disposed 
of  or  decided  therein,  but  in  which  the  probate  judge  thereof  is 
interested  in  any  manner  whatever,  as  attorney  or  otherwise,  or 
in  which  he  is  required  to  be  a  witness  to  a  will,  such  probate 
judge  must,  upon  the  motion  of  a  party  interested  in  such  pro- 
ceeding, or  upon  his  own  motion,  certify  the  matters  and  proceed- 
ings to  the  court  of  common  pleas,  and  he  must  forthwith  file 
with  the  clerk  of  the  court  of  common  pleas,  all  original  papers 
connected  with  the  proceedings,  and  the  same  must  be  proceeded 
in  and  heard  and  determined  by  the  court  of  common  pleas,  at 
chambers,  by  any  judge  thereof,  or  in  open  court,  in  the  same 
manner  as  though  that  court  had  original  jurisdiction  of  the 
subject  matter  thereof,  and  upon  the  final  decision  of  the  ques- 
tions involved  in  such  proceedings,  or  on  the  final  settlement  of 


^534,  77  0.  L.  183. 


CHAP.  2,  19-23]        DUTIES  OF  PROBATE  COURTS.  13 

the  estate  in  which  the  judge  is  interested  as  guardian,  by  the 
court  of  common  pleas,  or  whenever  the  interest  of  the  probate 
judge  therein  ceases,  the  clerk  must  deliver  all  the  original 
papers  back  to  the  probate  court,  from  which  they  came;  and 
the  clerk  must,  also,  make  out  an  authenticated  transcript  of  the 
orders,  judgments,  and  proceedings  of  the  court  therein,  and 
must  file  the  same  in  the  probate  court,  from  which  the  paper*} 
came  and  the  judge  thereof  must  record  the  same  in  the  ordin- 
ary records  of  similar  business.1 

19.  Questions  arising  in  probate  court;  how  determined.  In  pro- 
ceedings in  probate  courts,  all  questions,  except  those  arising  in 
criminal  actions  and  proceedings,  unless  otherwise  provided  by 
law,  must  be  determined  by  the  probate  judge,  unless,  in  his 
discretion,  he  shall  order  the  same  to  be  tried  by  a  jury,  or  re- 
ferred, as  provided  for  references  in  the  court  of  common  pleas.1 

2<t.  Depositions  may  be  used  in  probate  court  trials.  Depositions 
taken  according  to  the  provisions  of  law  for  taking  depositions 
to  be  used  on  the  trial  of  civil  causes,  may  be  taken  and  used  on 
the  trial  of  any  question  before  the  probate  court,  where  such 
testimony  may  be  proper.8 

21.  Sheriffs,  constables,  etc.,  must  serve  in  probate  court.  Sher- 
iffs, deputy  sheriffs,  coroners,  and  constables  must,  when  required 
by  the  probate  judge,  attend  his  court,  and  must  serve  and  re- 
turn all  processes  directed  to  them  by  the  judge.4 

22.  Fees  of  witnesses,  officers,  etc.,  in  such  court.  The  fees  of 
witnesses,  jurors,  sheriffs,  coroners,  and  constables,  for  all  services 
rendered  in  the  probate  court,  or  by  order  of  the  probate  judge, 
are  the  same  as  is  provided  by  law,  for  like  services  in  the  court 
of  common  pleas.5 

23.  General  duties  of  probate  judge.  It  is  one  of  the  peculiar 
provinces  of  the  probate  judge  to  watch  over  the  persons  and 
estates  of  minors.  The  minor,  in  law  and  in  fact,  is  wholl}'  in- 
capable of  transacting  his  own  business,  or  of  rearing  and  edu- 
cating himself;  his  experience  is  nothing,  and  his  judgment 
immature  and  unreliable;  therefore,  a  guardian  is  appointed  for 

1  ?  535. 

2  2  6400.     For  law  governing  such  references,  see  §2  5210-5218. 
8 2 6404.     *  §  540.     5 ? 6405. 


14  DUTIES  OP  PROBATE  COURTS.  [CHAP.  2,  24. 

him.  But  experience  has  proved  thai  men,  either  from  inherent 
dishonesty,  doubtful  notions  of  right  and  wrong,  or  from  inca- 
pacity or  immoral  conduct,  are  not  always  to  be  trusted  with  the 
Bole  management  of  another's  business.  Therefore,  in  this  State, 
the  duty  of  protecting  and  vigilantly  guarding  the  interests  of 
minors,  and  of  scrutinizing  the  doings,  and  enforcing  the  duties 
of  the  guardian,  with  a  view  to  compelling,  if  necessary,  the 
faithful  discharge  of  the  trust  reposed  in  him,  with  power  to  call 
him  to  account,  and  to  remove  him  if  he  be  faithless  to  that  trust 
or  incompetent  to  discharge  it,  has  been  specially  confided  to  the 
probate  court. 

24.  It  is.  therefore,  clearly  the  duty  of  that  court  to  keep  a 
close  eye  upon  all  the  guardians  of  its  appointment,  and  to  call 
them  to  account  whenever  any  wavering  from  the  strict  line  of 
their  fiduciary  duties  is  perceived  ;  and  this,  too,  without  waiting 
for  a  formal  complaint  being  made  by  a  third  person. 


CHAP.  3.] 


APPOINTMENT   OF   GUARDIANS. 


15 


CHAPTER  3. 


APPOINTMENT  OF  GUARDIANS. 


Par. 

1.  Probate  court  appoints. 

2.  Why  minor's  residence  must  be 

correctly  determined. 

3.  As  to   infant    non-resident  land- 

owners. 

4.  How    minor's    residence     deter- 

mined. 

5.  Statutory  rules   for  determining 

residence. 

6.  Where  courts  have  awarded  cus- 

tody of  minors. 
7-14.  Actual   place  of  residence  of 
parent  custodian  determines 
minor's  residence. 

15.  Place  of  actual  residence  and  le- 

gal settlement  may  be  differ- 
ent. 

16.  Residence  of  guardian. 

KINDS   OP   GUARDIAN  ;    HOW  CHOSEN  ; 
FOR  HOW   LONG,  ETC. 

17.  Guardian  of  the  estate  only. 

18.  Guardian  of  the  person  only. 

19.  Guardian  of  the  person  and  es- 

tate. 

20.  Guardian    chosen   by  minor;   by 

court. 

21.  Minor   can    not  choose  separate 

guardians,  unless. 

22.  How   long   powers    of   guardian 

continue. 

23.  Superseded      guardian's      settle- 

ment. 


Par. 

24.  If  minor  fails  to  select,  and  when 

court  first  appoints,  what  to 
do. 

25.  Testamentary     guardians;     how 

appointed. 

26.  Testamentary   guardian  to  have 

preference.        His      duties, 
powers  and  liabilities. 

27.  Bond  of  such  guardian. 


WHO    MAY    BE    GUARDIAN. 

Certain  administrators  and  ex- 
ecutors not  eligible. 

Probate  judge  can  not  be. 

Non-resident  of  state  can  not 
be. 

Must  be  resident  of  the  county. 

A  minor  can  not  be  guardian, 
nor  can  idiot,  lunatic,  etc. 

When  father  or  mother  should 
be  appointed. 

When  other  relative  should  be. 
-36.  Majr  a  married  woman  be  ap- 
pointed guardian  ? 

Applicant  for  appointment  as 
guardian  must  give  bond, 
its  amount. 

Condition  of  bond. 

Oath  of  applicant. 

Mortgage  may  be  given  instead 
of  freehold  security. 

Bond  of  guardian  of  person;  oath 
required. 


16 


APPOINTMENT    OF    GUARDIANS. 


fen  a  P.  3,  1. 


42.  When  such   guardian  shall   give 

bond,  etc. 

43.  One      bond     for     two     or    more 

wards,    and     fees     in    such 
cases. 

44.  Qualification  of  sureties. 

45.  The  number  of  sureties. 

47.  Sureties  ma\  be  examined  under 

oath. 
47-49.   Oral  examination  of  proposed 

surely. 
50.   Affidavit  of  surety. 
51-54.  The  l'ovm  of  affidavit. 
55-62.  The  form  of  guardian's  bond. 
63-67.  When    mortgage    security   is 

given. 

68.  No  bond  invalid  for  informality. 

69.  Guardian's     bond      good      when 

signed  in  blank.  ' 
70-71.  Carelessness      not     justified. 

Difference  between  form  and 

substance  of  bond. 
72-73.  The   bond    should  be    signed 

in  court. 
74-79.  Form  of  mortgage. 

80.  When  mortgage  to  be  filed. 

81.  The  requisite  of  affidavit    as   to 

value  of  the  land  security. 

82.  How  to  proceed  when  mortgage 

security  is  given. 
83-86.  The  form   of   affidavit  as  to 

such  security. 
87-88.  Another  form. 
89.  Further   consideration  of  bonds, 

found  where. 


Par. 
proceedings  to  appoint  a  guardian. 
90.  Statement  of  ward's  estate  must 

be  filed. 
91-99.  Form  of  statement  of  ward's 
estate. 

100.  What   officer    may    take    affida- 

vit. 

101.  Judge  should  appoint  applicant, 

if. 

102-105.  Form  of  journal  entry 
of  appointment  of  guar- 
dian. 

106-107.  Form  of  journal  entry 
where  the  minor  selects  a 
guardian. 

108-110.  Form  of  entry  where  minor 
notified  and  fails  to  ap- 
point. 

111-113.  Form  of  journal  entry  of 
appointment  of  guardian  of 
the  person  only. 

114-115.  Form  of  guardian's  oath  of 
appointment. 

116.  Oath  may  be  indorsed  on  bond 

or  filed  with  it. 

117.  What  the  journal  entry  should 

show,  and  why. 

118.  What  is  effective  part  of  the  ap- 

pointment, 
119-123.  Another  form  of  oath. 

124.  When     appointment     is     com- 

plete. 

125.  What  to  do  first. 

126.  Must  file  inventory. 
127-131.  Form  of  inventory. 


1.  Probate  court  appoints. — It  is  the  imperative  duty  of  the 
probate  court  in  each  county  to  appoint,  when  necessary,  guard- 
ians of  minors  resident  in  such  county.1 


1  §6254.  The  courts  of  common  pleas  formerly  exercised  this  jurisdiction 
(S.  «&;  0, 1212, 1 2),  but  since  July  1,  1853,  the  probate  court  has  been  "  vested 
with   full   and   exclusive  jurisdiction   in  this  matter,  and  that  jurisdiction 


CHAP.    3,  2-4.]  APPOINTMENT    OF    GUARDIANS.  17 

RESIDENCE. 

2.  Why  minor's  residence  must  be  correctly  determined. — As  the 
only  court  empowered  to  appoint  a  guardian  for  a  minor,  except 
as  specified  in  the  next  paragraph,  is  the  probate  court  of  the 
county  in  which  the  minor  has  his  actual  or  constructive  resi- 
dence at  the  time  of  such  appointment,  and  as  the  attempted  ex- 
ercise of  such  power  by  any  other  court,  and  all  the  acts  of  any 
guardian  elsewhere  appointed  would  be  null  and  void,1  the  rules 
for  determining  such  residence  nre  of  great  importance. 

3.  As  to  infant  non-resident  I  and -owner . — The  statute  provides 
that  "  minors  living  out  of  this  state  and  owning  lands  within  the 
same  shall  be  entitled  to  the  benefit  of  this  act."2  This  language 
probably  authorizes  the  probate  court  of  the  county  where  such 
lands,  or  where  any  portion  of  them,  are  situate,  to  appoint  a 
guardian  of  the  estate  of  such  minor,  as  to  such  lands.  But  as 
the  supreme  court  has  never  passed  upon  this  point,  it  may  be 
best,  in  such  case,  to  proceed  under  the  law  in  chapter  22.  The 
word  'act,"  above,  was,  probably  by  inadvertence,  not  changed 
to  •'  chapter,"  as  it  should  have  been. 

4.  How  minor's  residence  determined. — Generally,  the  minor's 

attaches  whenever  application  is  duly  made  for  its  exercise."  Shroyer  v. 
Richmond,  16  0.  S.  455. 

Proceedings  for  the  appointment  of  a  guardian  are  proceedings  in  rem, 
not  inter  partes  or  adversary  in  their  character.  The  order  of  appointment, 
made  in  the  exercise  of  jurisdiction,  binds  the  world.  The  actual  presence 
of  the  ward  is  not  necessary,  unless  by  reason  of  his  right  to  choose  a 
guardian,  or  for  other  cause,  the  statute  so  require,     lb. 

The  question  as  to  the  jurisdiction  of  the  court  making  the  appointment 
of  a  guardian  is  open  to  inquiry.  But  when  the  record  alleges  the  facts 
conferring  jurisdiction,  quaere,  1843.    Maxsom  v.  Sawyer,  12  0.  195. 

See  also  note  1,  next  page. 

A  guardian  appointed  by  the  probate  court  has  no  power  to  act  or  control 
the  property  of  his  ward,  until  he  has  given  bond  with  surety  approved  by 
the  court.  Letters  of  guardianship  issued  to  him  before  he  has  given  bond 
confer  no  power  and  have  no  effect  whatever.     State  v.  Sloane,  20  0.  327. 

The  guardian  derives  his  power  from  the  appointment  and  giving  bond, 
and  letters  of  guardianship  need  not,  in  fact,  issue.  Maxsom  v.  Sawyer, 
12  0.  195. 

'Maxsom  v.  Sawyer,  12  0.  195.  (See  pars.  1,11-14,  this  chapter) ; 
Schouler's  Dom.  Rel.  412,  413,   Dorman  v.  Ogbourne,  16  Ala.  789. 

*§6290. 

2 


18  APPOINTMENT    OF    GUARDIANS.  [CHAP.  3,  4 

residence  is  that  of  his  father,  if  both  parents  ore  living,  or  of  the 
surviving  parent,  if  cither  of  them  dies,  and  it  will  continue  so 
during  minority,  in  *piic  of  the  minor's  temporary  absence  at 
Bchool  or  elsewhere.1  II  m  residence  may  be  changed  by  his  father 
during  the  latter's  life,  and  after  that  by  his  surviving  mother, 
at  least  till  her  re-marriage,  and  no  doubt  afterward  by  the  step- 
father, if  he  takes  the  minor  into  his  family  as  a  member  thereof. 
Authorities  differ  as  to  whether  the  guardian  of  the  person,  or  of 
the  person  and  estate,  can  change  his  ward's  residence,  even  if 
done  in  good  faith,  and  not  to  change  the  nature  of  the  inherit- 
ance.    The  minor  can  not  of  himself  change  his  domicile.2 

JSee  next  ten  paragraphs  of  text;  also  Schouler's  Dom.  Rel.  313;  l' 
Kent's  Coin.  22(1,  227,  especially  notes  (d)  and  (b)  respectively;  Story  Conf. 
Laws,  (}{j  15,  46,  and  cases  cited  by  these  writers. 

The  place  where  its  parents  lived  and  died,  and  where  its  property  re- 
mains, id  presumed  to  be  the  proper  place  for  the  court  to  make  the  appoint- 
ment of  a  minor's  guardian.  Doe  v.  Litherberry,  4  McLean,  442  (U.  S.  Cir- 
cuit Court,  7;h  Circuit). 

Parol  proof,  a  ter  a  lapse  of  twenty-three  year?,  not  admissible  to  show 
that  the  minors  were  residents  of  C.  county  [0.],  and  not  of  Hamilton,     lb. 

Temporary  absence  from  the  county  does  not  affect  the  jurisdiction  of  the 
court  in  the  appointment  of  a  guardian,     lb. 

The  domicile  of  the  infantis  always  presumed  to  be  that  of  its  mother,    lb. 

The  last  preceding  paragraph  appears  to  be  in  conflict  with  the  authori- 
ties cited  above;  but  an  examination  of  the  case  shows  that  it  is  not,  as 
the  father  o°  the  minors,  in  that  case,  was  dead,  and  they  were  in  the  cus- 
tody of  their  step-mother.  The  following  is  the  language  of  the  judge,  upon 
which  the  foregoing  is  based:  "  No  one  will  contend  that  the  minors  must, 
in  fact,  be  within  the  county  where  the  appointment  was  made.  They  may 
have  been  absent  on  a  visit;  their  mother  was  not  living,  and  they  were  left 
in  charge  of  their  step-mother.  Her  home  would  be  their  domicile,  and  by  the 
law,  she  was  entitled  to  occupy  the  mansion  house  one  year  from  the  death 
of  her  husband.  What  is  to  fix  the  domicile  of  infants  ?  The  home  of  these 
infants  was  in  Hamilton  county.  Their  property  was  there,  and  it  was  there 
only  that  a  guardian  conld  be  properly  appointed.  If  they  had  not,  at  the 
time,  an  actual  residence  in  Hamilton  county,  they  had  constructively.  It 
was  the  place  of  their  birth,  where  their  father  and  mother  had  lived  and 
died,  and  where  all  their  property  was  to  be  found.  They  had  left  the 
county,  at  most,  only  a  few  months  before  this  appointment  was  made. 
There  is  no  suggestion  of  fraud  or  unfairness  in  the  appointment,     lb. 

2  See  Wait's  Actions  and  Defenses,  638-9,  where  he  discusses  the  matter 
briefly,  and  hesitatingly  thinks  the  weight  of  authority  is  that  the  guardian 


CHAP.  3,  5.]  APPOINTMENT    OF    GUARDIANS.  19 

5.  Statutory  rules  for  determining  residence. — The  statutory  rules 
for  determining  the  residence  bf  a  person  offering  to  vote  in  this 
state  ma}',  in  so  far  as  they  are  applicable,  assist  in  determining 
the  residenee  of  the  minor's  parents.  These  rules  are  as  follows  : 
First.  That  place  shall  be  considered  the  residence  of  a  person  in 
which  his  habitation  is  fixed,  and  to  which,  whenever  he  is 
absent,  be  has  the  intention  of  returning.  Second.  A  person 
shall  not  be  considered  to  have  lost  his  residence  who  leaves  his 
home,  and  goes  into  another  state,  or  county  of  this  state,  for 
temporary  purposes  merely,  with  the  intention  of  returning. 
Third.  A  person  shall  not  be  considered  to  have  gained  a  resi- 
dence in  any  county  of  this  state,  into  which  he  comes  for  tempo- 
rary purposes  merely,  without  the  intention  of  making  such 
county  his  home.  Fourth.  The  place  where  the  family  of  a  mar- 
ried man  resides  shall  be  considered  and  held  to  be  his  place  of 
residence,  except  where  the  husband  and  wife  have  separated  and 
live  apart,  then  the  place  where  they  resided  at  the  time  of  the 
separation  shall  be  considered  and  held  to  be  his  place  of  resi- 
dence, unless  he  afterward,  and  during  the  time  of  such  separa- 
tion, remove  from  such  place,  in  which  case  the  county,  township, 
city,  or  village  in  which  he  resides  the  length  of  time  required 
by  the  provisions  of  this  section  to  entitle  a  person  to  vote,  shall 
be  considered  and  held  to  be  his  place  of  residence.  Fifth.  If  a 
person  remove  to  another, state,  with  an  intention  to  make  it  his 
permanent  residence,  he  shall  be  considered  to  have  lost  his 
residence  in  this  state.  Sixth.  If  a  person  remove  to  another 
State,  with  an  intention  of  remaining  there  an  indefinite  time, 
and  as  a  place  of  present  residence,  he  shall  be  considered  to 

has  no  such  authority.  See  Story  Conf.  Laws,  §§  505,  506;  also  §§  45,  46, 
495,  504.     See  also  Kent's  Com.  226,  227. 

Schouler,  in  his  "  Dom.  Rel.,"  discusses  the  question,  and  favors  the  guard- 
ian's right  to  change  ward's  domicile;  but  most  of  the  American  cases  he 
cites  generally  tend  to  deny  the  right.  No  cases  later  than  those  cited  by 
these  writers  have  been  found. 

A  father,  residing  in  Morgan  countj',  dies  there,  leaving  minor  children: 
soon  afterward  the  mother  dies,  leaving  the  minors  in  the  same  county.  The 
grandfather,  residing  in  Jasper  county,  took  the  minors  home,  to  Jasper 
county,  to  reside  with  him.  Held,  that  the  ordinary  of  Jasper  county,  and 
he  only,  had  jurisdiction  to  appoint  a  guardian  over  the  minors.  Darden  v. 
Wyatt,  15  Gra.  414.     See  notes,  p.  97. 

The  rule  seems  to  be  that  the  residence  of  an  illegitimate  child  is  that  of 
its  mother.     Schouler's  Dom.  Rel.  384. 


20  APPOINTMENT    OP   GUARDIANS.  OHAP.  3,  6-9.] 

have  lost  bis  residence  in  this  state,  notwithstanding  he  may 
entertain  an  intention  to  return  at  some  future  period.  Seventh. 
The  mere  intention  to  acquire  a  new  residence,  without  the  fact 
of  removal,  shall  avail  nothing;  neither  shall  the  fact  of  removal 
without  the  intention.  Eighth.  If  a  person  go  into'  another 
State,  and  while  there  exercise  the  right  of  a  citizen  hy  voting, 
he  shall  be  considered  to  have  lost  his  residence  in  this  stale.1 

6.  When  courts  have  awarded  custody  of  minors. — When  a  court 
of  competent  jurisdiction  has  awarded  the  custody  of  children 
to  either  parent,  as  in  the  case  of  divorced  parents,  for  instance, 
the  residence  of  such  children,  without  doubt,  follows  that  of  the 
parent  or  other  person  to  whose  custody  they  are  entrusted.2 

7.  Actual  place  of  residence  of  parent  custodian  determines  minor's 
fence. — In  the  case  of  Maxsom  v.  Sawyer,:;alread}T  referred  to 

in  the  notes,  a  difficult  question  of  constructive  residence  was 
passed  upon  by  the  supreme  court  of  this  state.  Although  the 
appointment  of  guardians  was  then  vested  in  the  court  of  com- 
mon pleas,  instead  of  in  the  probate  court,  the  application  of  the 
principles  is  the  same. 

8.  In  this  case,  the  matter  in  controversy  Avas  the  title  to  a 
tract  of  land  derived  through  a  guardian's  sale,  and  the  validity 
of  the  title  hinged  very  largely  upon  the  residence  of  one  Max- 
som, a  minor,  designated  throughout  the  case  as  -"plaintiff's 
Lessor." 

9.  The  essential  facts,  as  far  as  they  affect  the  matter,  ai'e 
these:  The  father  of  plaintiff's  lessor  died  in  Geauga  county, 
Ohio,  his  place  of  legal  settlement,  when  the  plaintiff's  lessor 
was  about  three  years  old.  His  widow,  mother  of  plaintiff's 
lessor,  soon  after  intermarried  with  one  Seely,  also  living  in 
Geauga  county,  and  a  few  months  afterwards  left  him,  taking 
plaintiff's  lessor  with  her.  A  short  time  after  this,  she  entered 
into  a  written  agreement  with  one  Patterson,  living  in  Pennsyl- 
vania, that  plaintiff's  lessor  should  live  with  said  Patterson, 
in  Pennsylvania,  till  he  should  be  fourteen  years  old,  which  he 
did  do,  returning  to  Ohio  but  once,  and  then  for  one  day  only. 
in  all  that  time.  After  the  date  of  this  contract,  and  about  three 
years  after  the  death  of  said  father,  she,  undivorced  from  Seefy, 

1§2946.  312U.  195. 

*See  note    1,  page    8. 


CHAP.  ?,  10-12.]      APPOINTMENT    OF    GUARDIANS.  21 

who  lived  many  years  after  all  these  events,  intermarried  with 
one  Niles,  in  Ashtabula  county,  Ohio,  with  whom  she  resided  in 
said  Ashtabula  county  till  after  the  court  of  said  county,  some 
four  years  after  her  last  marriage,  had  appointed  said  Niles 
guardian  of  plaintiff's  lessor.  Niles,  as  said  guardian,  began 
proceedings  in  last  named  county  for  sale  of  lands  of  plaintiff's 
lessor,  situate  in  Geauga  county,  whereby  said  lands  were  sold, 
Sawyer  being  purchaser.  A  report  of  proceedings  was  returned 
to  said  court,  was  examined  and  confirmed,  and  deed  duly  exe- 
cuted. 

10.  The  plaintiff,  as  lessee  of  this  son,  brought  suit  to  obtain 
possession  of  these  Geauga  county  lands,  which  suit  the  lower 
court  sustained,  but  the  supreme  court  reversed  the  judgment  of 
the  lower  court. 

11.  Wood,  J.,  in  deciding  the  case,  used  the  following  lan- 
guage :  "  .  .  .  It  is  also  said  that  Niles  was  not,  in  fact, 
guardian,  because  the  plaintiff's  lessor  was  not,  at  the  time  of 
the  appointment,  a  minor,  within  the  county  of  Ashtabula;  and 
that  the  court  of  common  pleas  had,  therefore,  no  jurisdiction  to 
make  the  appointment.  This  is,  perhaps,  the  most  difficult 
question,  and  the  most  important  in  the  case;  and  if  the  fact  be 
as  supposed,  the  proceedings  in  the  court  of  common  pleas,  and 
of  the  guardian  under  them,  are  a  nullity,  and  the  defendant, 
consequently,  has  no  title  to  the  land  in  question.  Every  court, 
that  its  proceedings  may  be  of  any  validity,  must  have  jurisdic- 
tion over  the  subject-matter;  and  to  have  jurisdiction  over  the 
subject-matter,  in  this  case,  the  court  of  common  pleas  must 
also  have  acquired  jurisdiction  over  the  person  of  the  minor  for 
whom  the  guardian  was  appointed,  at  the  time  the  appointment 
was  made,  by  his  being  within  the  county  of  Ashtabula.  And 
if  the  plaintiff's  lessor  was  not  so  within  the  county,  the  court 
had  no  jurisdiction  ;  and  the  fact  maybe  shown,  and  the  pro- 
ceedings impeached  in  this  collateral  way.1 

12.  "  The  statute  enacts  that  the  court  of  common  pleas  shall 
have  power,  whenever  they  consider  it  necessary,  to  appoint  a 

1  Citing  here,  Ludlow's  Heirs  v.  McBride,  3  0-  240;  Holyoke  v.  Haskins,  5 
Pick.  19;  Borden  v.  Fitch,  15  Johns.  121,  123;  Smith  v.  Rice,  11  Mass.  507; 
Perry  v.  Brainard,  11  O.  442;  Hall  v.  Williams,  6  Pick.  2:52;  Latham  v. 
Edgarton,  9  Cowen,  227;  Snyder  v.  Snyder,  6  Binney,  483. 


22  APPOINTMENT    OF    GUARDIANS.      CHAP.  3,  13,  14.] 

guardian  or  guardians  to  all  minora  within  their  county,  etc.1 
It  is  therefore  essential,  at  the  time  of  the  appointment,  that  the 
minor  should  be  within  the  count}',  to  confer  jurisdiction.  If 
the  record  found  the  fact,  it  could  not  be  disproved  in  a  collateral 
proceeding  ;  but  as  it  docs  not,  it  is  open  to  inquiry. 

13.  -"Was  the  minor,  then,  in  the  county  at  the  time  of  the 
appointment  ? 

14.  "We  suppose  it  to  be  the  law  that  the  legal  settlement  of  the 
husband  draws  to  it  the  legal  settlement  of  the  wife.  Peter  Seely  had 
his  place  of  legal  settlement  in  Mentor,  in  Geauga  county,  in  1830, 
when  his  wife,  the  mother,  taking  with  her  the  plaintiff's  lessor, 
left  him,  and  went  to  the  county  of  Ashtabula.  She  could  ac- 
quire no  legal  settlement  there,  neither  by  her  marriage  with 
her  adulterer,  nor  by  her  actual  residence,  because  Peter  Seely, 
her  lawful  husband,  is  still  living  in  Mentor,  and  his  place  of 
legal  settlement  is  consequently  her's.  She  did,  however,  ac- 
tually reside  in  Ashtabula  county  for  several  years,  and  when 
this  appointment  of  guardian  was  made.  Did  not  her  actual 
residence  there  draw  to  it  the  constructive  residence  of  the 
plaintiff's  lessor?  "We  are  of  the  opinion  that  it  did.  It  is  true 
she  had,  by  her  covenant,  bound  him  to  Patterson,  where  his 
actual  residence  was.  That  covenant,  however,  was  of  no  valid- 
ity. It  was  the  covenant  of  a  feme  covert,  not  sanctioned  by  the 
husband,  and  in  which  he  had  not  joined.  The  father  is  the 
natural  guardian  of  his  minor  children.  On  his  death,  the 
mother  is,  by  nature,  guardian  of  those  of  tender  years,  and  en- 
titled to  their  custody  and  control.  If  she  many,  unless  the 
children  reside  at  home,  the  step-father,  as  distinct  from  the 
mother,  has  no  authority  over  them.  It  seems,  then,  to  us,  to 
follow  that,  as  her  covenant  with  Patterson  was  of  no  obligation, 
the  mother  of  the  plaintiff's  lessor,  he  being  of  tender  years, 
had  the  right,  at  any  moment,  to  call  him  to  her.  Her  actual, 
was  his  constructive,  residence,  and  he  was,  therefore,  when  the 
guardian  was  appointed,  constructively,  with  his  mother,  in  the 
county  of  Ashtabula.  It  will  hardly  be  contended  that  an  ac- 
tual residence  is  necessary  to  give  the  court  jurisdiction  of  the 
appointment.     Such  appointment  would  scarcely  be  questioned, 

Swan's  Statutes-  430,  §  1. 


CHAP.  3,  15-18]        APPOINTMENT  OP  GUARDIANS.  •  23 

when  the  actual  residence  of  the  minor  was  in  the  county,  but 
at  the  moment  of  the  appointment,  he  was  over  the  county  line 
for  a  temporary  purpose  merely.  He  would  be  considered  as 
constructively  within  the  county,  and  the  appointment  would  be 
valid.'' 

15.  Place  of  actual  residence  and  legal  settlement  may  be  different. 
It  will  be  observed  that,  according  to  the  foregoing  opinion,  the 
place  of  legal  settlement  and  the  place  of  actual  residence  are  not 
necessarily  the  same,  and  that  in  such  case,  the  court  of  the  place 
of  actual  residence  of  the  parent  entitled  to  the  child's  custody  is  the 
one  empowered  to  appoint  the  guardian. 

16.  Residence  of  guardian.  As  a  guardian  may  be  removed 
from  his  trust  if  he  becomes  the  citizen  of  another  county,1  it  is 
evident  that  he  must  generally  be  a  resident  of  the  county  of 
the  court  appointing  him.  But  guardians  appointed  by  will  are 
not  subject  to  this  restriction,  as  appears  from  paragraph  26  of 
this  chapter.  It  would  of  course  follow  that  he  must  be  a  resi- 
dent of  the  state,  even  in  the  absence  of  the  provisions  of  law 
found  in  paragraph  12  of  chapter  4. 

KINDS  OP  GUARDIANS  ;  HOW  CHOSEN,  AND  FOR  HOW  LONG,  ETC. 

17.  Guardian  of  the  estate  only.  A  guardian  may  be  appointed 
to  take  charge  of  the  estate  only  of  a  minor.2 

18.  Guardian  of  the  person  only. — If  a  minor  has  neither  father 
nor  mother,  or  if  his  father  and  mother  are  both  unsuitable  per- 
sons to-  have  the  custody  and  tuition  of  such  minor,3  or  if,  from 
any  other  cause,  in  the  opinion  of  the  court,  the  interests  of  such 
minor  will  be  promoted  thereby,  the  court  may,  either  at  the 
time  of  the  appointment  of  a  guardian  of  the  estate  only,  or 
afterwards,  also  appoint  a  guardian  to  have  the  custody  and  pro- 
vide for  the  maintenance  and  education  of  such  minor.* 

1  ?6272.    See  paragraph  17,  chapter  4. 

■  g  6255.     See  pars.  1,  118,  124,  and  notes  thereto. 

3  When  a  father,  by  neglect  or  abuse,  shows  himself  devoid  of  paternal 
affection,  a  court  of  chancery  may  remove  his  children  from  his  control,  and 
place  them  in  the  custody  of  a  proper  person  to  act  as  guardian,  who  may 
be  a  stranger.     Cowls  v.  Cowls,  8  Ills.  435. 

4  \  6255.  In  the  appointment  of  a  guardian,  the  interests  of  the  minor 
are  the  first  and  most  important  consideration.     Badenhoof  v.  Johnson,  11 


24  APPOINTMENT    OF    CTARDIANS.  [('HAP.  3,  19. 

1!).  Guardian  of  the  person  and  estate. — If  the  powers  of  the 
person  appointed  guardian  be  no<  limited  by  the  order  of  ap- 
pointment, the  person  so  appointed  will  be  guardian  of  both  the 
person  and  estate  oi  the  ward  ;  and  the  court  must  in  every  in- 
stance appoinl  a  guardian  of  both  the  person  and  estate  of  the 
ward,  unless  the  interests  of  the  minor  will,  in  the  opinion  of 
the  court,  be  promoted  by  the  appointment  of  separate  guar- 
dians, as  already  prescribed.1 

X,v.  87;  Succession  of  Fuqua,  27  La.  Ann.  271;  Foster  v.  Mott,  3  Brad. 
,X.  v.  L09;  Bennett  v.  Byrne,  2  Barb.  (N.  V.i  216;  Compton  v.  Compton, 
'J  Gill,  iM'l.)  241;  Holley  v.  Chamberlain,  1  Redf.  (N.  Y.)  333. 

Bui  nol  merely  his  temporary  welfare,  but  the  state  of  the  minor's  affec- 
tions, attachments,  his  training,  education,  and  morals,  ought  to  be  taken 
into  consideration.     Foster  v.  Mott,  and  Bennett  v.  Byrne,  above. 

]f  children  are  already  in  a  good  home,  this  is  a  reason  for  not  disturb- 
ing them.     1  McCart.  (N.  J.),  540. 

The  declared  wishes  of  a  deceased  parent  are  entitled  to  much  weight  in 
the  selection  of  a  guardian  of  its  child,  and  the  wish  of  a  dying  parent 
should  have  a  preponderating  influence  in  the  selection,  other  things  being 
equal.  Underhill  v.  Dennis,  9  Paige,  (N.  Y. )  202 ;  Bennett  v.  Byrne,  above; 
Cozine  v.  Horn,  1   Brad.  (N.   1  . )  L43;    Perry  on  lrusi.,,   §  39. 

But  where  children  had  been  left  many  years  with  their  grandparents  bj 
their  father,  who  was  a  widower  and  sea-faring  man,  and  had,  on  his  death 
bed,  designated  an  uncle  of  minors  as  their  guardian,  his  wishes  were  dis 
regarded.     Foster  v.  Mott,  above. 

Other  things  being  equal,  the  mother  of  a  female  child,  whose  father  is 
dead,  is  the  most  proper  person  to  be  intrusted  with  her  nurture,  care,  and 
custody,  and  should  therefore  be  appointed  her  guardian.  Tyler  on  Inf. 
and  Cov.  g  173;  People  r.  Wilcox,  22  Barb.    X.  Y.)  178. 

But  if  the  mother's  manner  of  life  would  be  likely  to  exercise  an  unfavor- 
able influence,  she  will  not  be  appointed,  nor  will  her  wishes  have  much 
weight,     Albert  v.  Perry  ;   1  McCart.  (N.  J.)  540. 

Other  things  being  equal,  some  near  relative  should  be  appointed  in  pref- 
erence to  a  stranger.  Foster  v.  Mott,  above  ;  Moorehouse  v.  Cooke,  Hop. 
(X.  Y.)  22 

See  Schouler's  Dom.  Rel.  416-18;   Tyler  on  Inf.  and  Cov.,  \  173. 

The  foregoing  notes  apply  with  especial  force  rather  to  the  appointment 
of  a  guardian  of  the  person,  or  of  the  person  and  estate,  than  of  the  estate 
only. — Ed. 

»g6255. 

It  is  requisite  that  the  person  appointed  be  sui  juris— "  of  his  own 
right"— and  capable  of  performing  the  appointment.     He  must  not  have 


CHAP.  3,  20-22.]       APPOINTMENT    OP    GUARDIANS.  25 

20.  Guardian  chosen  by  minor ;  by  court. — Any  male  infant 
over  the  age  of  fourteen  years,  or  a  female  infant  over  the  age 
of  twelve  years,1  has  the  right  to  select  a  guardian,  who,  if  a 
suitable  person,  must  be  appointed  ;  but  if  such  minor  fails  to 
select  a  suitable  person,  an  appointment  may  be  made  without 
reference  to  the  wishes  of  such  minor.2 

21.  Minor  can  not  choose  separate  guardian,  unless. — A  minor 
has  not,  in  any  instance,  the  right  to  select  one  pei'son  to 
be  the  guardian  of  his  or  her  estate  only,  and  another  person  to 
be  guardian  of  his  or  her  person  only,  unless  the  court  having 
the  power  of  appointment  is  of  opinion  that  the  interests  of  such 
minor  will  be  promoted  by  the  choice  and  appointment  of  such 
separate  guardians,  instead  of  one  guardian,  both  of  the  person 
and  estate.3 

22.  How  long  powers  of  guardian  continue. — When  a  guardian 
has  been  appointed  for  any  minor  before  he  or  she  has  attained 
the  age  for  making  a  selection,  as  fixed  in  the  two  last  preceding 
paragraphs,  the  jjowers  of  such  guardian  will  continue  Until 
the  ward  shall  arrive  at  the  age  of  majority,4  unless  such  sruar- 

any  interest  adverse  to  the  interest  of  bis  ward,  and  if  he  is  known  to  have 
any  such,  he  will  not  be  appointed.  A  person  under  his  full  age,  or  a  minor, 
can  not,  of  course,  be  appointed  to  take  care  of  another  minor ;  and  one 
under  the  power  of  another,  although  possessing  understanding,  as  a  mar- 
tied  woman,  is  not  qualified  for  the  trust.  1  Bouv.  Institute,  42;  Tyler  on 
Inf.  and  Cov.  \  173. 

JThe  statute  coincides  with  the  common  law  in  this  respect.  "At  com- 
mon law,  an  infant  can  elect  a  guardian  at  fourteen  years  of  age,  if  a  male; 
if  a  female,  at  the  age  of  twelve  years."  Reeves  Dora.  Rel.  *  p.  240. 
(Citing  Fondb.  74;  Ch.  Rep.  55;  1  Eq.  Ca.  Abr.  282  ;  1  T.  Rep.  648;  2  Vent. 
203;   1  Stra.  090.) 

2\  6257.  But  the  minor  can  not  select,  if  a  guardian  has  been  selected  by 
valid  will.     See  par.  26.  below.     As  to  notice  to  guardian,  see  p.  58. 

3  §6257. 

4  Before  the  enactment  of  the  saving  provision,  it  was  held  that  the  guar- 
dianship of  a  minor  expired  by  the  limitation  of  the  law,  when  the  ward  ar- 
rived at  the  age  designated  in  paragraph  20.  It  was  further  held  that  a 
guardian  appointed  for  such  ward  could  not,  after  the  ward  had  reached 
the  age  where  the  statutory  right  to  select  a  guardian  applied,  sell  the  lands 
of  the  ward  on  a  petition  filed  alter  such  time,  and  that  a  sale  made  on  an  or- 
der of  the  court,  under  such  petition,  was  void.     Perry  v.  Brainard,  11  O.  442. 

Under  the  old  law,  it  was  also  held  that  a  guardian   for  a  female  under 


26  APP10NTMENT    OP    GUARDIANS.      [CHAP.  3,  23-25 

dian  be  sooner  removed  for  good  cause,  or  such  ward  selects 
another  Buitable  guardian.1 

23.  Superseded  guardian's  settlement. — After  such  selection  is 
made  and  approved  by  the  court,  and  the  person  so  selected 
is  duly  appointed  and  qualified,  the  powers  of  the  guardian  pre- 
viously appointed  cease,  and  thereupon  the  final  account  of  such 
guardian  must  be  filed  and  settled  in  the  proper  court.1 

2  1.  If  minor  fails  to  select,  and  when  court  first  appoints,  what  to 
do. — If  the  minor,  alter  arriving  at  the  proper  age  for  selecting, 
is  satisfied  with  the  guardian  already  acting,  or  fails  to  select 
another,  no  action  need  be  taken  by  the  court,  as  such  guardian 
continues  in  office  till  the  ward's  majority.  But  the  court  should, 
in  no  case,  except  in  that  of  a  testamentary  guardian,  appoint  a 
guardian  for  a  minor,  of  proper  age  to  select  for  himself,  until 
such  minor  has  had  an  opportunity  to  make  such  selection  ;  and 
therefore,  before  such  appointment  is  made,  if  the  minor  does  not 
come  himself  voluntarily  before  the  court  to  make  the  selection,  the 
court  should  send  him  a  written  notice,  that  unless  he  appearand 
make  such  selection  within  a  reasonable  time,  or  on  a  day  named, 
the  court  will  appoint  a  guardian  for  him  ;  for  until  he  has  had  a 
day  in  court,  be  can  not  bo  said  to  have  failed  to  make  the  selection.2 

25.  Testamentary  guardians — how  appointed. — Any  father,  or  in 
ease  the  father  be  dead  or  have  gone  to  parts  unknown,  any 
mother  may,  by  last  will  in  writing,  appoint3  a  guardian  or 
guardians,  for  any  of  his  or  her  children,  whether  born  at  the 
time  of  making  the  will,  or  afterward,  to  continue  during  the 
minority  of  the  child,  or  for  a  less  time.* 

twelve  continued  only  till  the  ward  attained  that  age.  After  that,  his  guar- 
dianship expired,  and  payment  of  his  ward's  money  could  no  more  be  made 
to  him  validly  than  if  he  had  never  been  appointed.  Nor  were  the  acts  of 
the  child  treating  him  after  that  time  as  guardian,  admissible  to  show  au- 
thority. 1832.  Campbell  v.  English,  W.  11!).  See  note,  p.  230. 
1 1  6258.     See  par.  48,  p.  58,  and  note,  p.  230. 

2  See  Perry  r.  Brainard,  11  O.  442,  443. 

3  See  paragraph  16,  chapter  1. 
*  I  6266. 

This  power  of  a  father  to  appoint  a  guardian  extends  to  all  his  legitimate 
children  who  are  under  age  and  unmarried  at  his  decease,  or  who  are  born 
afterwards.     2  Bro.  C.  C.  558. 

Where  a  man  having  no  children,  by  will  appointed  his  wife  and  brother, 


CHAP.  3,   26-27.]       APPOINTMENT    OP    GUARDIANS.  27 

26.  Testamentary  guardian  to  have  preference — his  duties,  powers, 
and  liabilities. — When  a  guardian  has  been  appointed  by  will,  by 
a  father  or  mother  of  any  child,  such  guardian  will  be  entitled 
to  preference,  in  appointment  over  all  others,  without  reference 
to  his  place  of  residence,  or  the  choice  of  such  minor;  but  his 
appointment,  duties,  powers,  and  liabilities  will  in  all  other  re- 
spects be  governed  by  the  law  regulating  guardians  not  ap- 
pointed by  will,  except  as  otherwise  specially  provided.1 

27.  Bond  of  such  guardian. — Such  guardian  need  not,  generally, 
give  bond,  if  excused  from  so  doing  by  the  will.2     But  this  rests 

or  the  survivor  of  them,  to  the  guardianship  of  all  his  sons  thereafter  to  be 
born,  it  was  held  that  the  guardianship  extended  to  all  his  sons  by  that  or  a 
future  marriage.     7  Ves.  348. 

A  testator,  by  his  will,  gave  real  and  personal  property  to  the  children  of 
his  nephew,  and  appointed  their  father  their  guardian,  "for  the  purpose  of 
receiving  and  managing  said  property  so  given.  Held,  that  such  testator 
20uld  not  make  such  appointment,  and  that  the  will  did  not  vest  an  estate 
in  trust  in  the  father  for  the  children.  Brigham  v.  Wheeler,  8  Mete.  (Mass. 
127. 

A  will  appointing  a  guardian  must  be  executed  in  same  manner  as  other 
wills,  or  the  appointment  will  not  be  valid.  Wardwell  v.  Wardwell,  9  Allen, 
(Mass.)  518. 

Where  a  testator  left  the  care  and  custody  "  of  his  infant  children  to  his 
wife  so  long  as  she  remain  his  widow,  she  to  be  guided  by  the  advice  of  my 
executors  as  to  the  education  of  my  said  children,"  etc.  Held,  that  the  wife 
w'as  constituted  sole  testamentary  guardian,  and  that,  she  having  married 
again,  the  appointment  of  a  new  guardian  was  necessary.  Corrigan  v. 
Kiernan,  1  Bradf.  (N.  Y.)  208. 

An  executor  was  also  named  in  the  will  as  guardian  of  the  minor  child  of 
the  testator.  He  qualified  as  executor,  but  never  took  upon  himself  the  duties 
Df  guardian,  and  renounced  the  guardianship  after  six  years.  Another  per- 
son was  appointed  guardian,  who  receipted  to  the  executor  for  his  ward's 
share  of  the  estate.  Held,  that  such  appointment  was  valid,  and  that  the 
mere  naming  the  executor  in  the  will,  as  guardian,  did  not  constitute  him 
such,  although  he  may  have  done  some  acts  appropriate  to  that  character. 
McAlister  v.  Olmstead,  1  Humph.  (Tenn.)  210. 

A  testamentary  guardian  can  not  be  appointed  by  a  grandparent  of  the 
infant.  Hoyt  v.  Hilton,  2  Edw.  (N.  Y.)  202;  Fullerton  v.  Jackson,  5  Johns. 
Ch.  (N.  Y.)  278;  Williamson  v.  Jordan,  1  Bush.  (N.  C.)  Eq.  46;  Vanarts- 
dalen  v.  Vanartsdalen,  14  Pa.  St.  384;  Tyler  on  Inf.  and  Cov.  253. 

1  §  6267.    See  preceding  note. 

2  §6268. 


28  APPOINTMENT   OP    GUARDIANS.       [CHAP.  3,  28-30. 

in  the  discretion  of  the  court,  as  is  more  fully  stated  in  para- 
graph 42  below. 

WHO    MAY    BE    GUARDIAN. 

28.  Certain  administrators  and  executors  are  not  eligible.—No 
person  who  may  have  been,  or  shall  be,  an  administrator  on  an  • 
estate,  or  executor  of  a  last  will  and  testament,  can  Ira  appointed 
a  guardian  of  the  person  and  estate,  or  of  the  estate  only  of  any 
minor  who  will  be  interested  in  the  estate  administered  upon, 
or  who  will  be  entitled  to  any  interest  under  or  by  virtue  of 
such  last  will  and  testament;  but  an  executor  or  administrator 
may  be  appointed  a  guardian  of  the  person  only  of  any  minor.1 

-\l  Probate  judge  can  not  be — Letters  of  guardianship  can  not 
be  issued  to  any  person  alter  his  election  to  the  office  of  probate 
judge,  and  before  the  expiration  of  his  term  of  office.2 

30.  Non-resident  of  state  can  not  be. — As  the  statute  provides 
that  the  removal  from  the  state  of  any  person  who  has  been 
heretofore  or  who  may  be  hereafter  appointed  guardian,  shall 
of  itself  determine  the  guardianship  of  such  person,3  the  infer- 
ence is  probably  conclusive  that  a  person  not  a  resident  of  the 
state  can  not  be  appointed  guardian.  Even  if  the  statutes 
were  silent  on  this  point,  the  fact  that  such  a  person  is  entirely 
outside  of  the  jurisdiction  and  control  of  the  court  seems  of  itself 

256.  Applies  to  administratrix.  Scobey  v.  Gano,  35  O.  S.  350.  Such 
appointment  treated  as  void  in  a  collateral  proceeding.     lb. 

2g  535.  As  to  other  disabilities  of  probate  judge  in  matters  of  guardian- 
ship, see  chapter  2. 

3§  6272.     See  Appendix,  par.  71. 

"  Persons  residing  out  of  the  jurisdiction  will  not  usually  be  appointed 
guardians,  although  one  who  was  out  of  the  state  might  yet  control  from  a 
distance;  for,  it  is  said,  there  must  be  some  one  answerable  to  the  court 
(Logan  v.  Fairlee,  Jacob,  193.)  But  if'  the  sureties  on  the  guardian's  bond 
reside  within  the  jurisdiction  and  are  pecuniarily  responsible,  is  not  some  one 
answerable  to  the  court?  The  cases,  however,  are  rare  where  such  an  ap- 
pointment would  be  advantageous  to  the  ward  for  business  reasons;  and 
hence,  others  are  usually  chosen,  both  in  chancery  and  probate.  In  some 
of  the  Unite.]  Slates,  the  appointment  of  non-residents  is  prohibited  by  stat- 
ute; and  even  without  such  prohibition  the  court  is  justified  in  withholding 
letters  of  guardianship  at  discretion,  where  the  petitioner  is  beyond  the  reach 
of  state  process.    (Finney  v.  State,  9  Mis.  227.)"    Schouler's  Dom.  Reh  419. 


CIIAP.  3,  31-33.]      APPOINTMENT   OP    GUARDIANS. 


29 


to  be  a  sufficient  reason  for  refusing  to  appoint  a  non-resident  to 
such  a  trust,  even  if  named  for  it  by  will. 

31.  Must  be  resident  of  the  county — And  as  it  is  provided  that, 
if  a  person  who  has  been  appointed  guardian  removes  from  the 
county,  it  is  good  cause  for  removing  the  guardian  from  the 
trust,1  it  would  seem  that  no  one  should  be  appointed  thereto 
(except  testamentary  guardians,  mentioned  in  paragraph  26), 
unless  he  resides  in  the  count}*  when  the  appointment  is  made. 

32.  A  minor  can  not  be  guardian ;  nor  can  idiot,  lunatic,  etc. — A 
minor  is  entirely  incompetent  to  be  appointed  or  to  act  as  guar- 
dian. Nor  can  an  idiot,  lunatic,  or  imbecile;  and  should  any 
such  person  be  so  nominated  by  will,  or  become  so  after  the 
making  of  the  will  and  before  the  time  for  appointment  by  the 
court,  such  appointment  should  not  be  made..  The  power  of  the 
court  is  ample  to  protect  against  such  a  step,  or  to  remove  any 
guardian  who  may  become  of  unsound  mind  after  appointment.11 

33.  When  father  or  mother  should  be  appointed.  If  the  father 
be  living,  and  is  a  suitable  person  to  act  as  guardian  of  his 
minor  child,  the  court  should  appoint  him,  as  being  the  person 
first  entitled  thereto;  if  the  father  be  dead  and  the  mother  be 

1§6272. 

2  As  a  statutory  power  to  remove,  see  §  6272. 

It  is  not  believed  that  the  case  of  Starr  v.  Wright,  20  0.  S.  97,  in  which 
it  was  held  that  a  minor  could  be  trustee  for  certain  purposes,  authorizes  a 
minor  to  act  as  guardian. 

".  .  .  These  considerations,  and  others  that  might  be  named,  render  an 
infant  incompetent  to  exercise  the  office  of  trustee."'  3  Redfield  on  Wills, 
571. 

It  is  requisite  that  the  person  appointed  be  sui  juris — "  of  his  own  right," 
and  capable  of  performing  the  appointment.  He  must  not  have  any  interest 
adverse  to  the  interest  of  his  ward,  and  if  he  is  known  to  have  any  such,  he 
will  not  be  appointed.  A  person  under  full  age,  or  a  minor,  can  not,  of 
course,  be  appointed  to  take  care  of  another  minor.  1  Bouvier's  Institutes, 
42  ;  Tyler  on  Inf.  and  Gov.  259. 

If  a  person  appointed  become  lunatic  or  is  otherwise  incapaciated  to  exe- 
cute the  trust  reposed  in  him,  or  if  he  abuses  the  trust,  the  court  may  eiiher 
totally  remove  him  and  appoint  another,  or,  by  obliging  him  to  give  security 
to  make  good  his  deficiencies,  hinder  him  from  doing  any  thing  prejudicial 
to  the  infant.  Tyler  on  Inf.  and  Cov.  253  (citing  Ex  parte  Salter,  3  Br.  Ch. 
cases,  500;  O'Keefe  v.  Carey,  1  Sch.  &  Lefroy,  106;  Roach  v.  Govvan,  1 
Ves.  Sen.  160).     See  also  Perry  on  Trusts,  §  275. 


30  APPOINTMENT    OF    GUARDIANS.  [CHAP.   3,  34-37. 

living,  unmarried,  and  a  suitable  person,  she  should  receive  the 
appointment ;  if  both  father  and  mother  be  dead,  or  if  the  father, 
or  in  case  of  his  death,  the  mother,  are  unsuitable  persons,  then 
the  court  will  be  authorized  to  appoint  some  other  proper  person 
as  sueh  guardian.1 

34.  When  other  relative  should  be.  If  the  estate  of  such  child 
has  come  by  gift  from  some  other  relation,  as  a  grandfather, 
which  person  is  unobjectionable,  the  court  would,  in  such  east', 
deem  it  right  to  give  such  relative  the  preference  in  the  appoint- 
ment. Such  has  been  the  rule  adopted  by  courts  of  chancery, 
and  is  undoubtedly  a  safe  rule  for  the  probate  court.1 

35.  May  a  married  woman  be  appointed,  guardian?  Whether  a 
married  woman  is  legally  competent  to  act  as  guardian  by  ap- 
pointment of  court  in  this  state,  except  as  specified  in  chapter 
19,  paragraph  4,  is  a  question  that  has  never  been  judicialh*  de- 
cided. Formerly  it  was  the  generally  accepted  opiuion  that  she 
was  not,  because  of  certain  legal  incapacities  fully  discussed  else- 
where ;  *  and  the  uniform  practice  of  the  courts  was  in  accordance 
wiih  that  opinion. 

36.  But  the  act  of  March  l!»,  1887 ,3  seems  to  have  placed  heron 
an  exact  equality  with  a  married  man  in  all  respects  in  regard  to 
conducting  business,  giving  bond,  etc.,  in  her  own  right;  and  there 
seems  to  be  now  no  legal  impediment  to  her  acting  as  guardian  of  the 
estate  of  a  minor,  etc.  However,  the  fact  that  the  marriage  of  an 
unmarried  woman  terminates  guardianship,4  shows  that  courts  would 
not  be  without  grounds  on  which  to  base  a  decision  to  the  effect 
that  she  can  not  be  such  guardian. 

BOND.5 

37.  Applicant  for  appointment  mud  give  bond;  its  amount.  Be- 
fore any  person  can  be  appointed  guardian  of  the  person  and 
estate,  or  of  the  estate  only,  of  any  minor,  he  must,  after  filing 
the  statement  prescribed  in  paragraphs  90-99  of  this  chapter, 
give  bond,  with  freehold  sureties,  resident  of  the  state,  one  of 
whom    must    he    resident  of  the  county  where    such    guardian    is 

1  Sec  notes  3  and  4,  pp.  23,  24.  2  See  Appendix,  p.  297. 

3  See  84  v.  132;  g  3108  et  seq.,  and  notes  thereto,  in  Giauque's  ed.  Kev. 
Stats,  of  Ohio.     See  also  Palmer  v.  Oakley,  on  page  36. 

*  See  par.  7,  chap.  4.  5  See  par.  89,  this  chap. 


CHAP.  3,  38-42.]  APPOINTMENT    OF   GUARDIANS.  31 

appointed,  paj'able  to  the  state,  in  double  the  amount  of  the  per- 
sonal estate  belonging  to  said  minor,  and  also  of  the  gross 
amount  of  rents  that  will  probably  be  received  by  the  guardian 
from  the  real  estate  of  said  minor  during  his  or  her  minority.1 

38.  Condition  of  bond.  The  bond  must  be  conditioned  for  the 
faithful  discharge  of  the  duties  of  such  person,  as  such  guard- 
ian, and  must  be  approved  by  the  court  making  such  appoint- 
ment.2 

39.  Oath  of  applicant.  The  person  applying  for  the  appoint- 
ment must  also  take  an  oath  that  he  will  faithfully  and  honestly 
discharge  the  duties  devolving  upon  him,  as  such  guardian.3 

40.  Mortgage  may  be  given  instead  of  freehold  surety.  In  lieu 
of  the  freehold  surety  required  in  paragraph  o7,  above,  the  ap- 
plicant may  execute  to  said  minor  a  mortgage  upon  good  and 
unincumbered  real  estate,  first  furnishing  to  the  probate  court 
an  abstract  of  his  title  thereto,  which  must,  by  affidavits  duly 
filed,  be  shown  to  be  in  value,  exclusive  of  all  improvements 
thereon,  sufficient  to  secure  said  bond  to  the  satisfaction  of  the 
probate  court;  and  such  mortgage  must  be  duly  recorded  in  the 
county  in  which  such  real  estate  is  situate,  and  filed  with  the 
probate  court.4 

41.  Bond  of  guardian  of  person;  oath  required. — Before  a  per- 
son is  appointed  guardian  to  have  the  custody,  maintenance  and 
tuition  of  a  minor,  without  the  right  to  take  charge  of  the 
minor's  estate,  he  must  give  bond  in  double  the  probable  ex- 
penses of  maintaining  and  educatiug  such  minor  during  one 
year.  In  all  other  respects  his  bond  must  be  the  same  as  if  he 
had  charge  of  the  estate  of  the  ward ;  and  he  must  take  the  same 
oath  prescribed  in  paragraphs  114-115  below.5 

42.  When  such  guardian  must  give  bond,  etc. — Every  testament- 
ary guardian  must  give  bond,  in  like  manner  and  with  like  con- 
ditions, as   is  required  of  a  guardian   appointed  by  the  probate 

l§6259.  Trust  funds  should  not  bo  paid  over  to  the  guardian  without  se- 
curity, even  though  he  is  the  father,  and  is  unable  to  give  security.  Savage 
v.  Olmstead,  2  Redf.  (N.  Y.)  478.     See  also  par.  8,  chap.  1. 

2  \  6259.     See  notes  on  next  two  pages. 

3 \  6259.     For  form  of  this  oath  see  pars.  114-115. 

*  \  6259.     For  form  of  mortgage,  see  page  35. 

5  §6260. 


:'»_'  APPOINTMENT    OK    GUARDIANS.       [CHAP.  3,  43-44 

court  :  hut  when  the  testator,  in  the  will  appointing  the  guard- 
ian, shall  have  ordered  or  requested  that  such  bond  should  not 
be  given,  the  bond  can  not  bo  required,  unless,  from  a  change  in 
the  situation  or  circumstances  of  the  guardian,  or  for  other  suffi- 
cient cause,  the  court  of  probate  shall  think  proper  to  require  it.1 

43.  One  bond  for  two  or  more  wards  ;  and  fees  in  such  cases. — 
When  the  same  person  is  appointed  guardian  of  several  minors, 
being  children  of  the  same  parentage  and  inheriting  from  the 
same  estate,  separate  bonds  can  not  be  required;  and  in  such 
cases  only  one  application  can  he  required  ;  and  the  letters  of 
guardianship  to  be  issued  to  such  guardian  by  the  court  must  be 
in  one  Copy,  and  not  one  for  each  minor  :  and  the  court  approv- 
ing and  recording  such  bond,  and  issuing  such  letters,  must 
charge  such  fees  as  are  allowed  by  law  for  such  services,  to  be 
charged  but  once,  and  not  once  for  each  ward  of  such  guardian.2 

44.  Qualification  of  sureties. — Sureties  must  be  residents  of 
this  state,  and  worth,  in  the  aggregate,  double  the  sum  to  be  se- 
cured, beyond  the  amount  of  their  debts,  and  have  property 
liable  to  execution  in  this  state  equal  to  the  sum  to  be  secured.' 

1  ?  6268.     See  paragraphs  26,  27,  this  chapter.  2  §  6263. 

s  §  4953. 

The  following  is  the  rule  of  the  Probate  Court  of  Hamilton  county: 

"  By  Order  of  Court. — On  all  bonds  taken  in  this  court  there  shall  not 
be  less  than  two  sureties,  who  must  be  residents  of  this  county;  and  such 
sureties  on  each  bond  must,  in  the  aggregate,  own  real  estate  in  this  county 
worth  double  the  amount  of  the  bond,  beyond  their  debts,  and  have  reaJ 
estate  in  this  count3T  liable  to  execution,  equal  to  the  amount  stated  in  the 
bond."     Journal  65,  page  162. 

A  probate  court  appointed  B.  guardian  of  some  of  the  minor  children  of 
W.,  and  he  gave  bond  as  required.  Held,  that  the  court  had  no  power,  at  » 
subsequent  term,  to  appoint  him  guardian  of  another  of  said  minors,  with- 
out bond,  and  simply  make  an  order  that  the  bond  executed  on  behalf  of 
the  other  children  should  stand  as  a  bond  for  the  latter  also  ;  and  that  such 
order  was  wholly  inoperative  to  constitute  the  second  guardianship.  Van- 
derburg  v.  Williamson,  52  Miss.  233. 

"The  bond  of  a  probate  guardian  renders  him  and  his  sureties  liable  for 
all  estate  of  the  ward  which  shall  come  into  his  possession  or  knowledge. 
This  includes  chattels  due  from  the  guardian  to  the  ward  at  the  time  of  his 
appointment,  or  of  the  execution  of  the  bond,  even  though  the  fund  be  pro- 
ceeds of  land  already  sold  and  paid  for,  and  the  rent  of  real  estate  occupied 
by  the  guardian  before  that  time.  It  embraces  chattels  and  rents  and  in- 
come from  every  species  of  propertj-  that  the  guardian  actually  receives  in 


CHAP.  3,  45-49.]       APPOINTMENT    OF    GUARDIANS.  33 

45.  The  number  of  sureties. — The  statute  does  not  direct  how 
many  sureties  shall  be  required  to  the  bond,  but  as  it  uses  the 
plural  number,  and  says  that  the  sureties  to  the  bond  shall  be 
freeholders,  it  is  evident  that  the  proper  course  is  to  require  at 
least  two  sureties,  as  in  case  of  executors  and  administrators  ; 1 
and  the  court  should  look  to  it  carefully  that  they  have  a  free- 
hold qualification,  and  are  abundantly  good  for  the  amount  of 
the  bond  over  and  above  their  debts,  liabilities,  right  of  home- 
stead and  other  exemptions  from  execution. 

46.  Sureties  may  be  examined  under  oath. — The  law  provides 
that  a  court  or  an  officer,  authorized  bylaw  to  approve  a  surety, 
may  require  such  person  to  testify,  orally  or  in  writing,  touch- 
ing his  sufficiency ;  but  that  this  shall  not,  in  itself,  exonerate 
the  officer  in  an  action  for  taking  insufficient  surety.2 

47.  Oral  examination  of  proposed  surety. — For  the  purpose  of 
ascertaining  the  responsibility  of  each  surety,  before  he  is  ac- 
cepted as  such,  the  court  may  administer  an  oath  to  him  in  the 
following  form  : 

48.  Do  you  solemnly  swear  [or  affirm,  as  the  case  may  be~\  that 
you  will  true  and  full  answers  make  to  such  questions  as  may  be 
put  to  you  by  the  court,  counsel  or  parties,  touching  your  prop- 
erty, indebtedness,  liabilities  or  responsibility,  and  this  you  will 
do  as  you  will  answer  to  God  \or  if  the  party  affimis,  say  as  you 
will  answer  under  the  pains  and  penalties  of  perjury]. 

49.  The  judge  may  then  ask  him  of  what  his  property  con- 
sists, the  value  of  his  real  and  personal  property,  what  liens  are 
upon  it  by  mortgage,  judgment  or  otherwise,  the  general  amount 
of  his  indebtedness  or  as  to  particular  debts,  what  contingent 

his  official  capacity,  or  that  lie  might  have  received  if  he  had  faithfully  per- 
formed his  duties."  [Citing  Mattoon  v.  Cowing,  13  Gray  (Mass. ),  387 ;  Neill  v. 
Neill,  31  Miss.  36 ;  Bond  v.  Lockwood,  33  111.  212 ;  Williams  r.  Morton,  38  Me. 
47;  McClendon  v.  Harlan,  2  Heisk.  (Tenn.),  337]  Schouler's  Dom.  Rel.491. 

"'The  liabilitj-  of  sureties  lasts  while  the  responsibilities  of  the  guardian- 
ship continue,  and  it  does  not  terminate  by  the  resignation  or  death  of  the 
guardian.  For  the  ward's  estate  in  the  guardian's  hands  or  subject  to  his  con- 
trol at  the  time  of  his  death,  they  continue  liable.''  [Citing  Moore  v.  Wallis, 
18  Ala.  458;  State  v.  Thorn,  28  Ind.  306;  Ashley  v.  Johnston,  23  Ark.  163.] 
See  also  notes  on  pp.  178-181,  230. 

1  See  par.  37,  this  chapter.  2 I  4952. 

3 


34  APPOINTMENT    OF   GUARDIANS.       [CHAP.  3,  50-62. 

liabilities  as  suiety  or  otherwise  be  has,  etc.,  etc.,  and  whether,  if 
his  debts  were  all  paid,  he  would  be  worth  the  amount  ol  the  bond. 
50.  Affidavit  of  surety.— It  is  customary  in  many,  perhaps  in 
most,  of  the  probate  courts  of  the  stale,  to  require  each  surety  to 
a  bond  to  make  an  affidavit  as  to  his  property  qualifications,  and 
to  file  this  affidavit  with  the  bond.  This  is  excellent  practice  for 
many  reasons,  and  should  he  universally  adopted.  In  case  this 
is  done,  the  oral  examination  just  mentioned  may  be  dispensed 
with  or  not,  in  the  discretion  of  the  court. 

51-4.  The  form  of  such  affidavit  should  be  substantially  as 
follows  : 

The  State  of  Ohio, county,  ss\ 

P.  Q.,  one  of  the  sureties  on  the  bond  of  A.  B.,  as  guardian  of 
the   person  and  estate  of  [here  name  the  minor  or  minors],  being 

duly  sworn,  says  that  he  is  a  resident  of county,  Ohio  ;  that 

he  is  worth,  beyond  the  amount  of  all   his  debts,  at   least 

dollars;  and  that  he  has  real  estate  liable  to  execution  in  the 
State  of  Ohio  amounting,  in  actual  value,  at  least  to  the  sum  of 

dollars  beyond  the  amount  of  all  his  debts,  legal  exemptions 

and  liabilities  as  surety  or  otherwise.         [Signed]  P.  Q. 

Sworn  to  and  subscribed  before  me  this day  of ,  A. 

D   18 .  A.  O,  Probate  Judge. 

55-62.  The  form  of  guardian's  bond,  when  freehold  surety  is 
given,  should  be  as  follows: 

Know  all  men  by  these  presents,  That  we,  A.  B.,  resident  of 

county,  Ohio,  as  principal,  and  P.  Q.,  resident  of county, 

O.,  and  P.  S.,  resident  of county,  Ohio,  as  sureties,  [or,  if 

all  parties  reside  in  the  same  county,  give  their  names  and  relations 

to  the  bond  as  above,  and  then  add,  all  being  residents  of 

county,  Ohio,]  are  held  and  firmly  bound  unto  the  State  of  Ohio, 

in  the  just  and  full  sum  of dollars,  for  the  payment  whereof 

well  and  truly  to  be  made,  we  hereby  jointly  and  severally  bind 
ourselves,  our  heirs,  executors  and  administrators,  firmly  by 
these  presents. 

Sealed  with  our  seals,1  and  sigued  at ,  this day  of 

A.  D.  eighteen  hundred  and . 

The   condition   of    the   above  obligation    is  such,  that  whereas 


*See  note  1,  p.  38. 


CHAP.  3,  63-67.]    APPOINTMENT   OF   GUARDIANS.  35 

the  above  bound  A.  B.  has  this  day  been  appointed  by  the  probate 

court  of county,  Ohio,  guardian  of  the  person  and  estate  (or 

estate  only,  if  such  be  the  case)  of  C.  D.,  aged years,  [and  if  A. 

B.  is  to  be  guardian  of  other  children  of  the  same  parentage  and  inherit- 
ing from  the  same  estate,  here  name  the  others  also,  as 

G.  H. ,  aged years ; 

J.  K.,  aged  years;  etc.,] 

child  (or,  children)  of  E.   F.,  deceased,  late  of  ,  [or,  now  liv- 
ing, if  so],  and  which  appointment  the  said  A.  B.  has  accepted. 

Now  if  the  said  A.  B.  shall  faithfully  discharge  all  of  his  [or, 
her]  duties,  as  such  guardian,  then  the  above  obligation  shall  be 
void;  otherwise  it  shall  be  and  remain  in  full  force. 

(Signatures  and  seals  of  A.  B.,  P.  Q.,  and  R.  S.) 

Executed  in  presence  of 

This  bond  approved  in  open  court,  this day  of a.  d. 

18—.  A.  C,  Probate  Judge,  etc. 

63-8.  If  mortgage  security  only  is  given,  the  bond  should  be  in 
form  substantially  as  follows: 

Know  all   men   by   these  presents,  that  I,  A.  B.,  a  resident  of 
county,  Ohio,  am  held  and  firmly  bound   unto  the  State  of 


Ohio,  in   the  just   and   full  sum    of  dollars,  for  the  payment 

whereof  well  and  truly  to  be  made,  I  hereby  bind  myself,  my 
heirs,  executors,  and  administrators,  firmly  by  these  presents. 

Sealed  with   my  seal  and  signed  at ,  Ohio,  this day  of 

,  A.  D.  eighteen  hundred  and  . 

The  condition  of  the  above  obligation  is  such,  that  whereas  the 
above   bound  A.   B.    has  tins  day  been   appointed   by  the   probate 

court  of county,  Ohio,  guardian  of  the  person  and  estate  [or, 

estate  only,  if  so]  of 

C.  D.,  aged years,  [and  if  the  bond  is  for  more  than 

one,  add  G.  H. ,  aged years, 

J.  K.,  aged years,  etc.] 

the  child,  [or,  children]  of  E.  F.,  deceased,  late  of  [or,  now 

living,  if  so]  and  which  appointment  the  said  A.  B.  has  accepted, 
and  has  also  given  mortgage  security  for  the  faithful  discharge  of 
the  duties  of  the  same. 

Now,  if  the  said  A.  B.  shall  faithfully  discharge  all  of  his  [or, 
her]  duties,  as  such  guardian,  theu  the  above  obligation  shall  be 
void,  otherwise  it  shall  be  and  remain  in  full  force. 

Executed  in  presence  of  A.  B.     [seal.] 


36  APPOINTMENT   OF   GUARDIANS.      [CHAP.  3,  69-71. 

This  bond  approved  in  open  court,  this  day  of  ,  a.  d. 

18 — .  .  A.  C,  Probate  Judge. 

69.  Xo  bond  invalid  for  informality. — The  law  provides  that  no 
bond  executed  by  a  guardian  shall  be  void,  or  held  invalid  on  ac- 
count of  any  informality  in  the  same,  nor  on  account  of  any  in- 
formality or  illegality  in    the  appointment  of  such   guardian;  and 

that  Buch  bond  shall  have  the  same  force  and  effect  as  if  such  ap- 
pointment had  been  legally  made  and  such  bond  executed  in  proper 
form.1 

70.  Guardian's  bond  good  when  signed  in  blank, —  AH  guardian's 
bonds  will  be  binding  on  all  who  sign  them  either  as  principals  or 
sureties,  whether  at  the  time  of  signing  such  bond  by  them,  or  any 
of  them,  the  amounts  of  such  bonds  be  tilled  in  or  left  in  blank,  if 
such  amounts  be  rilled  in  before,  or  at  the  time  of  the  approval  or 
acceptance  of  such  bond;  and  such  filling  in  may  be  done  in  the 
absence  of  any  or  all  of  the  said  signers,  and  without  any  express 
authority  for  that  purpose  from  them  or  any  of  them.3 

71.  (  •  not  justified. — These  provisions  of  the  law,  how- 
ever, will  not  justify  carelessness  in  drawing  up  the  bond  ;  for  while 
a  bond  may  be  deficient  in  form,  and  yet  be  valid,  it  is  quite  as 
likely  to  be  deficient  in  substance  also,  and  thereby  void. 

2  '_.      F   r  <  >bi  ■  cases  bearing  m<  --  directly  on  this  section,  see 

note-  on  pp.  178-9,  and  others  there  specified. 

ng  to  recite  guardian's  appointment  in  bond,  making  bond  to  jus- 
-  -  -.ling  by  name,  making  conditions  less  extensive  than  law  re- 

quires, does  not  invalidate  bond.  Equity  has  jurisdiction  of  guardian  liv- 
ing out  of  state.     Pratt  r.  Wright.  13  Gratt.  (Va.1  175. 

Bond  good  though  condition  not  in  words  required  by  statute,  but  in  more 
general  terms.     27  Vt.  202. 

.Surety  signing  bond  in  unusual  place,  bound.  Intention  may  be  shown 
by  parol.     Richardson  o.  Boynton,  12  Alien  (.Mass.    138. 

Guardian  held  who  had  not  signed  bond;  sufficient  if  sureties  sign.  Sure- 
ties held  though  guardian  he  a  married  woman,  who?e  appointment  is  not 
void  but  ■•  at  not  assailable  collaterally.     Appointment  of  guardian 

for  minor  over  fourteen  ;.  -id  if  minor  not  cited.     Guardian's  sale 

not  void  Iditional  bond  and  notice  not  given.     Palmer  v.  Oakley, 

■j  I)  ug.     Mich.    41:;:   b.  c,  47  Am.  Dec.  41. 

Bond  _  igh  ward's  names  inserted   in   wrong  place.     Sprinkle  v. 

Mart.-  .175. 

Additional  bond  being  given,  both  bonds  are  in  full  force.  In  what  pro- 
portion sureties  bound.  Loring  v.  Bacon,  3  Cu.-h.  Mass.  465;  Common- 
wealth r.  I  -     442. 

If  sureties  on  first  bond  pay  full  deficiency,  they  may  enforce  contribu- 
tion from  other  sureties.     Commonwealth  p.  Cox,  36  Pa.  St.  442. 

-\  6,  as  am.  80  v.  80.  This  applies  to  bonds  of  administrators,  executors, 
trustees,  and  others,  also.     lb.     See  also  37  O.  S.  484;   38  O.  S.  375. 

Bond  good  in  equitv,  though  penaltv  left  blank.  Bumpas  v.  Dotson,  7 
Humph.  (Tenn.    310;  s.  e..  40  Am.  Dec.  81. 


CHAP    3,   72-79.]  3UARDIA     -  7 

72.  1  -  .  vrt. — T;   giu 

against  frauds,  forj        -  -.  the 

bond  should  b^  always  signed  at  the  office  of  the  probate  jt:    _ 
and  in   b  :.ce.  or  that  of  his  clerk.     The  pra  if 

mitting  the  bond  to  be  carried  out  and  signed  by  the  pa: 
to  it.  and  then  returned,   is  very  improper,  and  fraught  with 
many  dangers. 

A  moment's  reflection  will  convince  any  one  of  this      T_~ 
infant  has  no  part  in  this  matter,  and  can  give  no  attention  t 
has  he  any  control  ova  It  is  the  peculiar  pre 

the  infant  the  m   -  ar- 

row ften  ru:. 

a  great  nuc:  -ars.  before  there  is  any  oecas 

into  them,  or  before  any  inquiry  is  mai  gthem;  then 

some  of  I  ^d  some  disL 

the  bond  that  his  name  is      forgery  rard 

may  be  defrauded  of  his  who".-.     -  E       safest  g 

ssibility    : "1 ..'-  is  to  ha  gned  and 

_-d  in  court,  before  the  judge  or  his  I  witnesses 

"-- ■    Form  :e.     if.  instead  of  frr 

gag       -  _'.■■  Bed  in  paragraph  -40,  such  mortgage 

may  be  in  form  as  follows 

Know  all  men  by  these  presents     Thatwh         -        I        : 


county.  Ohio,  having  applied  for  appointment  asgv  Fthe 

person  and  estate  [or.  estate  only,  if  so]  of  C.  D.  [and  if  more  ~~ 

sbil- 
dren]  of  E.  F  -         Nowl  said  A.  1  .  u  of 

and  in  pursuance  of  the   statute    in  such 
made  and  provided,  and  in  coi  -  M  be  im- 

-    sed  upon  said  A.  B.,      reas  -  - 

grant. ba  _  LI  and  com  ^renamethes 

or  minors]  his  [or.  her  ssjgnsl 

low     _-  state,  situate  in  the  [city.  or.  village. 

niay  be]  of ,  in  the  county  of ,  and  S 

Ohio,  to-wit  [here  descrbe  the  property  by  metes  :-  in 

and  all  the  estal  st  of  the 

said  A.  B.  either  in  law  or  in  eq  :'.  in  and  I  -  ...i  prem 


38  APPOINTMENT    OP    GUARDIANS.  [CHAP.  3,  72-79. 

Ises;  together  with  all  the  privileges  and  appurtenances  to  the 
same  belonging,  and  all  the  rents,  issues  and  profits  thereof;  to 
have  and  to  hold  the  same  to  the  only  proper  use  of  the  said 
[here  name  the  said  minor  or  minors]  his  [or,  her,  or,  their]  heirs  and 
assigns  forever.  And  the  said  A.  B.,  for  himself  and  for  hin 
heirs,  executors  and  administrators,  does  hereby  covenant  with 
the  said  [here  again  name  said  minor  or  minors']  his  [or,  her,  or, 
their]  heirs  and  assigns,  that  he  is  the  true  and  lawful  owner  of 
the  said  premises,  and  has  full  power  to  convey  the  same  ;  and 
that  the  title,  so  conveyed,  is  clear,  free,  and  unincumbered  ;  and 
further,  that  he  will  warrant  and  defend  the  same  against  all 
claim  or  claims  of  all  persons  whomsoever.  Provided,  never- 
theless, that  if  the  said  A.  B.  shall  faithfully  discharge  all  of  his 
[or,  her]  duties  as  said  guardian,  then  these  presents  shall  be  void. 
In  witness  whereof,  the  said  A.  B.  [and,  if  he  has  a  wife,  here 
add,  and  W.  B.,  his  wife,  the  latter  of  whom  hereby  releases 
her  right  and  expectancy  of  dower  in  the  said  premises]  has 
hereunto  set  his  hand  and  seal1  [or,  have  hereunto  set  their  hands 

and  seals],  this day  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and . 

Signed,  sealed  and  acknowledged  in       A.  B.,  [seal.] 

the  presence  of  us  [there  mast  be      [W.  B.  if  so]    [seal.] 
two  witnesses  to  each  signature;  but 
the  same  two  can  witness  any  num- 
ber of  signatures]  : 

The  State  of  Ohio,  county  of ,  ss. 

Be  it  remembered,  that  on  the day  of ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and ,  before  me,  the  sub- 
scriber, a  notary  public  [or  other  officer  authorized  to  take  acknowl- 
edgment of  deeds]  in  and  for  said  county,  personally  came  A.  B.  [and 
W.  B.,  if  so],  the  grantor  [or,  the  grantors]  in  the  foregoing  mort- 
gage deed,  and  acknowledged  the  signing  and  sealing  thereof  to 
be  his  [or,  their]  voluntary  act  and  deed,  for  the  uses  and  purposes 
therein  mentioned.2 

1  Private  seals  :tre  abolished  in  Ohio.  See  \  4.  as  am.  81  O.  L.  198.  But 
since,  if  used,  they  are  merely  harmless  surplusage,  and  as  some  may  fear 
that  an  unsealed  bond  is  nudum  nudum  and  void  as  to  sureties,  it  may  be 
best  to  retain  them  on  such  bonds  as  guardians,' etc.  Official  seals  are  still 
required.     See,  a~  to  deeds,  note  1,  page  134. 

2  Wife's  separate  examination  now  useless  in  Ohio.  See  \  4107,  before, 
and  after,  its  amendment  in  84  v.  133. 


CHAP.    3,  80-82. J         APPOINTMENT    OF    GUARDIANS.  33 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name 
[if  the  officer  have  an  official  seal,  say  and  affixed  my  official  or 
notarial   seal],  on  the  day  and  year  aforesaid. 

[seal.]  Eichard  Eoe,  Notary  Public, 

[or,  J.  P.  etc.'],  as  aforesaid. 

80.  Where  mortgage  to  be  fled.  The  law  does  not  provide 
where  in  the  court  such  mortgage  must  be  filed  ;  but  as  it  is  in 
lieu  of  security  that  would  otherwise  be  in  the  bond  itself,  it 
should  no  doubt  be  filed  with  the  bond,  and  not  with  the  gene- 
ral papers  in  the  case. 

81.  The  requisites  of  affidavit  as  to  the  value  of  land  security. 
The  law  does  not  prescribe  the  number  nor  character  of  the  affi- 
davits mentioned  in  paragraph  40,  and  in  these  respects  they  are 
entirely  within  the  discretion  and  control  of  the  probate  judge  ; 
but  by  analogy  to  statutory  provisions  in  other  and  somewhat 
similar  circumstances,1  we  may  infer  that  the  judge  should  re- 
quire the  affidavits  of  at  least  three  judicious,  disinterested  per- 
sons, whose  opinion,  from  the  fact  of  their  being  property  own- 
ers in  the  vicinity  of  the  mortgaged  premises,  or  dealers  in  real 
estate  in  that  vicinity,  or  for  other  good  reasons,  may  fairly  be 
presumed  to  be  entitled  to  credit  in  this  matter. 

82.  How  to  proeeed  when  mortgage  security  is  given.  If  the  ap- 
plicant proposes  to  give  mortgage  security,  he  will  observe2  that 
he  must  first  furnish  the  court  with  an  abstract  of  title  to  the 
property  offered  as  security ;  and  as  this  and  the  execution  of 
the  mortgage  necessitate  the  expenditure  of  money,  time  and 
trouble  which  no  one  interested  desires  to  have  thrown  away, 
probably  the  best  course  for  the  applicant  to  pursue  would  be  to 
obtain  say  three  such  affidavits  as  are  described  in  the  preceding 
paragraph,  and  submit  them  to  the  probate  judge,  along  with 
the  statement  described  in  paragraphs  91-99,  below;  and  the 
judge  can  then  inform  him  whether  these  affidavits  are  suffi- 
cient, or  whether  additional  ones  will  be  required,  and  also 
whether  a  mortgage  on  the  property  described  in  them  would 

1  See  ?  6076;  Raff's  Guide,  p.  83. 

2  See  par.  40,  this  chapter. 


40  APPOINTMENT  OF  GUARDIANS.        [OHAI.  ?>,  83    bS 

be  satisfactory  security,  in  case  the  abstract  shall  show  it  to  bo 
free  and  unincumbered,  for  the  amount  of  the  bond  he  must  give. 
83-6.  The  form  of  the  affidavits  ma}' be,  for  instance,  as  fol- 
lows; and  they  may  be  taken  before  the  probate  judge,  or  no- 
tary public,  a  justice  of  the  peace,  or  other  officer  authorized  to 
administer  oaths  : 

The  State  of  Ohio, county,  SS. 

Before  me,  Richard  Roe,  a  notary  public  [or,  justice  of  the 
peace,  etc.]  in  and  for  said  county,  personally  appeared  L.  0., 
who,  being  duly  sworn,  says  that  for  fifteen  years  last  past  he 
has  been  a  resident  of,  and  owner  of  a  farm  of  one  hundred 
and  sixty  acres  in,the  immediate  vicinity  of  the  real  estate  owned 
by  A.  B.,  and  described  as  follows  [here  give  a  description  of  the 
real  estate  similar  to  that  which  must  be  given  in  the  mortgage, 
ichich  see ;  change  the  foregoing,  as  the  facts  require.'] 

Affiant  further  says  that  said  real  estate  of  A.  B.  is  worth, 

exclusive  of  all  improvements  thereon,  the  sum  of dollars, 

to  the  best  of  his  knowledge  and  belief. 

(Signed)  L-  °- 

Sworn  to  and  subscribed  before  me,  this  day  of  , 

a.  d.  18—. 

[seal.]  Richard  Roe,  Notary  Public 

[or,  J.  P.,  etc.]  as  aforesaid. 

87-8.  Another  form. 

The  State  of  Ohio, county,  ss. 

N.  S.,  being  duly  sworn,  says  that  he,  as  sheriff  of  said  county, 
has,  during  his  present  term  of  office,  sold  two  tracts  of  land  in 
the  vicinity  of  the  land  of  A.  B.  [if  one  affidavit  has  already  been 
taken,  the  sheet  on  which  this  one  is  written  may  be  attached  to  that 
affidavit,  if  desired],  described  in  the  annexed  affidavit  of  L.  O., 
and  that  by  reason  of  his  former  residence  in  that  vicinity,  and 
other  reasons,  he  is  well  acquainted  with  the  value  of  real  estate 
in    that    locality  ;  and    he  verily  believes  that  said   land  of  A. 

B.  is  fully  worth  dollars,  exclusive  of  all  improvements 

thereon. 

(Signed)  N.  S. 


CHAP.  3,  89-91.]        APPOINTMENT    OF    GUARDIANS.  41 


Sworn  to  and  subscribed   before  me,  this  day  of , 

A.  d.  18—. 

[seal]  Eichard  Roe,  Notary  Public, 

county,  Ohio. 

89.  Further  consideration  of  bonds,  found  where.  The  steps  so 
far  directed  with  regard  to  the  bond  are  those  which  are  prelim- 
inary to  the  appointment,  and  which  had  to  be  treated  as  a  part 
of  that  subject.  The  further  consideration  of  bonds,  exceptions 
thereto,  suits  upon,  sureties,  rights  and  liabilities  under,  etc.r 
will  be  found  in  chapter  10. 

PROCEEDINGS  TO  APPOINT  A  GUARDIAN. 

90.  Statement  of  ward's  estate  must  be  filed.  Before  any 
person  can  be  appointed  guardian  of  the  person  and  estate,  or 
of  the  estate  only,  of  any  minor,  he  must  file  in  the  office  of  the 
court  having  such  appointment  to  make,  a  statement  of  the 
whole  estate  of  such  minor,  and  the  probable  value  thereof,  and 
also  the  probable  annual  rents  of  such  minor's  real  estate,  and 
must  verify  the  same  by  affidavit.1 

91-99.  Form  of.    This  statement  may  be  in  the  following  form  : 

To  the  Honorable,  the  Judge  of  the  Probate  Court, 
of  County,  Ohio  : 

Your  petitioner  represents  it  to  be  necessary  that  the  coui-t  ap- 
point a  guardian  for  the  following  named  minor  [or  minors,  if 
more  than  one],  residing  in  said  county,  to-wit: 

C.  D.,  aged  years;  [and  if  more  than  one,  add,  G-.  H., 

aged years,  J.  H.,  aged years,  etc.],  child  of  E.  D.,  de- 
ceased [or,  now  living,  if  so ;  and  use  the  plural  number  of  the  words 
minor,  child,  person,  estate,  etc.,  when  necessary']. 

Your  petitioner  makes  this  his  application  to  be  appointed 
guardian  for  the  person  and  estate  [or,  estate  only,  if  so]  of  said  mi- 
nor ;  and  he  represents  that  said  minor  has  an  estate  consisting 
of  [here  give  a  full  statement,  including  the  "Recapitulation"  on  next 
page ;  or  a  statement  like  this  Recapihdation  only,  as  the  court  may  re- 
quire] : 

1.  One  house  and  lot  in  Glendale,  probable  value..  $12,500 

2.  160  ac.  farm  in Co.,  ().,  probable  value 5,200 

1  §  6259. 


42  APPOINTMENT    OF    GUARDIANS.       [CHAP.  3,  100-1. 

3.  200  acres  wild  land,  in  Louisiana,  probable  value  400 

4.  14  shares  Little  Miami  E.  E.  stock,      "             "     1,436 

5.  Cash  on  deposit  at  K.  W.  Hughes  &  Co's  bank 1,080 

6.  TJ.  S.  bonds,  from  the  estate  of  E.  F.,  after  settlement.  1,000 

7.  Promissory  note  of  H.  S.,  from  same  estate 1,100 

$22,776 

The  probable  annual  rent  of  Glendale  house  and  lot  is..       $900 
Of  the  100-acrc  farm,  (90  acres  cleared) 300 

$1,200 

RECAPITULATION. 

Probable  value  of  real  estate $18,100 

'<  "      "    personal  property 4,676 

"        annual  rents  of  real  estate 1,200 

The  following  freeholders  are  offered  as  sureties:  P.  Q.  and  E.  S. 

Petitioner's  post-office, ;  his  residence, ;  his  place  of 

business, ;  his  attorneys, ;  their  office, . 

The  State  of  Ohio, county,  ss. 

A.  B.,  being  duly  sworn,  says  that  the  foregoing  statements 
air  in  all  respects  true  and  correct,  to  the  best  of  his  knowledge 
and  belief. 

{Signed)  A.  B. 

Sworn  to  and  subscribed  before  me,  this  day  of  , 

A  D  .  A.  O,  Probate  Judge,  etc. 

100.  What  officer  may  take  affidavit.  This  affidavit  may  be 
made  before  the  probate  judge,  a  notary  public,  or  any  officer 
authorized  to  administer  oaths  generally;  but  it*would  be  well 
to  make  all  affidavits  before  the  judge,  at  least  when  convenient. 

101.  Judge  should  appoint  applicant,  if. — If  the  probate  judge  is 
satisfied  that  the  person  proposed  as  guardian  is  a  proper  and 
suitable  person,  and  that  the  statement  as  to  the  estate  of  the 
minor  is  correctly  and  honestly  made,  he  should  then  appoint 
such  person,  and  make  a  minute  thereof  upon  the  journal  of  the 
court. 


OHAP.  3,  102-7.]       APPOINTMENT  OP  GUARDIANS. 


43 


102-5.  Form  of  journal  entry1  of  appointment  of  a  guardian. 

In  the  matter  of  the  guardianship  of  0.  D. 

This  day  came  A.  B.,  and  made  application  to  be  appointed 
guardian  of  C.  D.,  and  the  court  being  satisfied  that  said  C.  D. 

is  a  minor,  of  the  age  of years  {any  age  less  than  fourteen, 

if  a  male;  or  twelve,  if  a  female~\*  on  the  day  of ,  a.  d. 

,  and  child  of  E.  F.,  deceased,  late  of ,  [or,  say,  now  living], 

and  that  said  minor  is  a  resident  of  this  county  ;  and  the  said 
A.  B.,  having  filed  in  this  office  a  statement,  duly  verified  by  his 
affidavit,  of  the  whole  estate  of  said  minor,  and  the  probable 
value  thereof  [and  if  there  be  real  estate,  add:  and  also  the  prob- 
able annual  rents  of  said  minor's  real  estate],  it  is,  therefore, 
by  the  court  ordered,  that  said  A.  B.  be,  and  he  is  hereby  ap- 
pointed guardian  of  the  person  and  estate  [or,  if  not  of  the  person, 
say:  of  the  estate  only]  of  the  said  C.  D. 

And  thereupon  came  the  said  A.  B.,  in  open  court,  and  ac- 
cepted said  appointment,  and  took  an  oath  that  he  would 
faithfully  and  honestly  discharge  the  duties  devolving  upon  him 
as  such  guardian,  and  also  gave  and  filed  herein  his  bond  in  the 

sum  of  dollars,  conditioned   according  to  law,  with  

and  ,  residents  of  county,  O.,  freeholders,  as  sureties 

[or,  mortgage  security  on  160  acres  of  land  (or  otherwise  briefly 

describe  the  real  estate)  situated  in township  of  said  county 

of .],  which  bond  was  approved  of  by  the  court. 

[If  all  these  events  did  not  occur  on  the  same  day,  enter  them  as 
of  the  day  on  which  they  occurred.~\ 

106-7.  Form  of  journal  entry,  where  the  minor  selects  a  guardian. 

If  the  guardian  appointed  is  one  selected  by  the  minor  of  the 
proper  age,  the  form  of  the  entry  should  vary  from  the  above 
in  this  :  proceed  to  the  *  as  in  the  following  : 

In  the  matter  of  the  guardianship  of  G.  D. 

This  day  came  the  said  C.  £>.,  and  made  choice  of  A.  B.  as  his 
guardian,  which  choice  is  approved  by  the  court,  and  the  court 

being    satisfied    that  said  C.  D.  is  a  minor  of  the  age   of  

years  [fourteen  or  more  if  a  male,  and  twelve  if  a  female, — and 
from  the  *  proceed  as  in  the  above  form.'] 

1See  direction  about  plural  number  on  page  41. 


44  APPOINTMENT  OP  GUARDIANS.    [dlAP.  3,  108-13. 

10S-110.  Form  of  entry  when  minor  notified  and  fails  to  appoint. 

If  the  minor  has  been  notified  to  make  his  selection,  and  has 
failed  to  do  so,  the  above  form  may  be  modified,  thus: 

In  the  matter  of  the  guardianship  of  C.  D. 

It  appearing  to  the  court  that  said  C.  D.  has  been  duly  notified 
to  come  into  this  court  and  select  a  guardian   for  himself,  upon 

the day  of ,  a.  d. [some  day  prior  to  the  day  of  this 

entry],  which  he  has  failed  to  do  [or  say,  if  the  case  be  so:  and 
having  selected  L.  P.  as  his  guardian,  who  was  not  approved  of 
by  the  court],  and  the  court  being  satisfied  that  said  C.  D.  is  a 

minor  child  of  E.  F.,  deceased,  of  the  age  of .years,  on  the 

Jay  of ,  A.  D. ,  and  is  a  resident  of  this  county,  and 

the  court  having  thereupon  selected  A.  B.  as  a  suitable  person  to 
act  as  such  guardian,  the  said  A.  B.  this  day  came  and  filed  in 
this  office  a  statement,  duly  verified  by  his  affidavit,  etc.  [proceed 
from  here  as  in  the  first  form  of  a  journal  entry.'] 

111-113.  Form  of  journal  entry  of  appointment  of  guardian  of 
the  person  only. 

In  the  matter  of  the  guardianship  of  C.  D. 

This  day  came  A.  B.,  and  made  application  to  be  appointed 
guardian  of  the  person  only  of  C.  D.  And  the  court  being  sat- 
isfied that  said  C.  D.  is  a   minor,  of  the  age  of years  [any 

age  less  than  juurteen  for  males,  and  twelve  for  females'],  on  the 

day   of ,  A.  D. ,  and  child  of  E.  F..  deceased,  late  of 

[or,  if  the  father  or  mother  be  living,  but  are  unsuitable  per- 
sons, say,  and  child  of  E.  F.,  now  living,  and  the  court  being 
further  satisfied  that  said  parent  (or,  parents)  is  an  unsuitable 
person  (or,  are  unsuitable  persons)  to  have  the  custodj-  and  tuition 
of  said  minor],  and  being  further  satisfied  that  said  minor  is  a 
resident  of  this  county,  and  that  it  is  for  the  interest  of  said 
minor  to  have  a  guardian  appointed  for  his  person  only. 

It,  is  therefore  by  the  court  ordered,  that  said  A.  B.  be,  and  he 
is  hereby  appointed  guardian  of  the  person  only  of  said  C.  D. 
And  thereupon  came  the  said  A.  B.,  in  open  court,  and  accepted 
said  appointment,  and  took  an  oath  that  he  would  faithfully  and 
honestly  discharge  the  duties  devolving  upon  him  as  such  guard- 


CHAP.  3.  11G-17.]    APPOINTMENT    OF    GUARDIANS.  45 

ian,  and  also  gave  and  filed  herein  his  bond  in  the  sum  of  

dollars,  conditioned  according  to  law,  with  and ,  free- 
holders, as  sureties  [or  with  mortgage  security,  as  in  preceding 
entry'],  which  bond  was  approved  of  by  the  court. 

114-115.   Form  of  guardian's  oath  at  appointment.    (See  par.  39.) 

A.  B.,  guardian  of  CD.,  a  minor,  being  duly  sworn  [or  af- 
firmed], says  that  he  will  faithfully  and  honestly  discharge  the 
duties  devolving  upon  him  as  such  guardian,  as  he  will  answer 
to  God  [or,  as  he  will  answer  under  the  pains  and  penalties  of 
perjury,  if  the  guardian  affirms]. 

(Signed)  A.  B. 

Sworn  to  [or  affirmed]  and  subscribed  before  me,  this day 

of ,  a.  D.  18 — .  A.  C,  Probate  Judge,  etc. 

116.  Oath  may  be  indorsed  on  bond,  or  filed  with  it. — This  oath 
may  very  properly  be  indorsed  upon  the  back  of  the  bond,  as  a 
safe  and  convenient  place  for  keeping  it;  or  it  may  be  on  a  sep- 
arate paper,  annexed  to  and  filed  with  the  bond,  although  this  is 
not  expressly  required. 

117.  Wlxat  the  journal  entry  should  show,  and  why  — It  should 
be  remembered  that  these  appointments  may  come  under  the 
review  of  other  courts  than  the  one  where  the  appointment  of  a 
guardian  is  made,  both  in  this  state  and  in  other  states  and  coun- 
tries ;  it  is  therefore  important  that  the  journal  entry  of  the 
order,  making  the  appointment,  should  in  itself  show  all  the 
matters  requisite  to  give  the  court  jurisdiction,  and  also  those 
things  done  on  the  part  of  the  guardian,  which  authorize  him 
to  act  under  the  appointment. 

118.  What  is  effective  part  of  the  appointment. — The  actual  taking 
out  letters  of  guardianship  is  nothing  of  itself;  the  entry  on  the 
court  journal  is  the  effective  part  of  the  appointment,  and  the 
letters  usually  issued  are  only  a  certificate  of  the  fact.1 

1  A  guardian  for  a  minor,  appointed  by  the  court  *  *  *  ,  has  no 
power  to  act  or  control  the  property  of  his  ward,  until  he  has  given  bond, 
with  surety  approved  by  the  court.  Letters  of  guardianship,  issued  to  him 
by  the  clerk,  before  such  bond  is  given,  confer  no  such  power,  and  have  no 
legal  effect  whatever.     1851.  State  v.  Sloane,  20  0.  327. 

A  guardian  derives  his  power  to  act  from   the  appointment  and  giving 


ii; 


APPOINTMENT    OP    GUARDIANS.    [CHAP.  3,  118-22. 


119.  Another  form  of  oath — How  filed  in  some  counties. — 
In  some  counties  it  is  the  practice  to  combine  the  oaths  as  to 
the  amount  of  estate  and  the  one  just  given  into  one  form,  let- 
ting it  follow  the  statement  given  in  paragraphs  91-99  ;  and  blanks 
for  these  statements  and  oath  are  bound  into  a  volume  for  con- 
venience of  filing  and  reference.  Tbe  form  is  substantially  as 
follows  : 

120-3.  The  State  of  Ohio,  Hamilton  county,  ss. 

Before  me,  the  undersigned,  judge  of  the  probate  court,  in 
and  for  said  county,  personally  appeared  A.  B.,  who  upon  oath 
[or  affirmation]  deposes  and  says  that  the  foregoing  statement  is 
true  according  to  the  best  of  his  knowledge;  and  that  he  will 
faithfully  and  honestly  discharge  the  duties  devolving  upon  him 
as  guardian  for  the  person  and  estate  of  C.  D.,  a  minor  of  said 
county,  as  required  by  law. 

(Signed)  A.  B. 

Sworn  to  [or  affirmed']  and  subscribed  before  me  this day 

of 18 — .  A.  O,  Probate  Judge. 

By  A.  G.,  Deputy  Clerk. 

124.  When  appointment  is  complete. — When  the  appointment 
of  a  guardian  has  been  made,  the  bond  given  and  approved  by 
the  court,  and  oath  taken  as  already  stated,  then  the  guardian  is 
clothed  with  full  powers  to  act  in  that  capacity  to  the  extent  for 
which  he  has  been  appointed.1 


bond.  Letters  of  guardianship  need  not  in  fact  issue.  Maxsom  v.  Sawyer, 
12  O. 195. 

A  letter  of  guardianship  is  in  the  nature  of  a  certificate  or  commission; 
and,  in  the  absence  of  any  statutory  provision  requiring  it,  it  is  not  essen- 
tial to  its  validity  as  evidence  of  the  appointment  that  it  should  recite  the 
mode  and  particulars  of  the  nomination,  and  all  reasonable  presumption 
must  be  indulged  in  favor  of  its  having  emanated  regularly  and  after  lawful 
proceedings.     Burrows  v.  Bailey,  34  Mich.  64. 

The  fact  that  the  letter  of  guardianship,  though  the  minors  were  shown  to 
be  over  14  years  of  age,  does  not  show  in  terms  that  the  guardian  was  nom- 
inated by  them,  or  that  they  were  asked  to  nominate  or  to  appear  for  that 
purpose,  will  not  justify  its  exclusion  as  evidence,     lb. 

1  See  note  1,  preceding  pajie. 


CHAP.3,  125-131.]    APPOINTMENT  OF  GUARDIAN* 


47 


125.  WJmt  to  do  first  after  appointment. — Immediately  after  his 
appointment,  the  guardian  should  get  a  suitable  book  for  properly- 
keeping  the  accounts  required  of  him  by  law,  as  more  fully  set 
forth  in  chapter  9,  especially  paragraphs  4  and  5. 

126.  Must  file  inventory. — As  more  fully  appears  from  paragraphs 
4  and  5  of  chapter  5  (page  62),  the  guardian  must  promptly  file 
an  inventory  of  the  ward's  real  and  personal  property,  or  be  re- 
moved for  failure  so  to  do. 

127-131.    The  form  of  inventory  may  be  as  follows: 


Inventory  of  the  real  and  personal  estate  of  C.  D.  minor  ward  of  A.  B. , 

guardian. 


Description  of  Personal  Estate. 

Cash  on  hand 

2  U.  S.  $500  4  per  cent  bonds,  par  value 

14  shares  Little  Miami  K.  R.  stock,  par  value,  $100  each 

1  note  by  H.  S 

[Eic,  etc.,  as  may  be.] 

Total  value  of  personal  estate 

Description  of  Real  Estate. 

One  lot  in  Glendale,  Ohio,  with  brick  dwelling-house  thereon. 

Yearly  rental  of  said  house  and  lot,  $900. 
One  120-"acre  farm  in  Green  township,  Hamilton  county,  Ohio. 

Yearly  rental  of  said  farm,  $350. 
200  acres  wild  land,  in  Sabine  Parish,  La. 

Yearly  rental  of  said  200  acres,  nothing. 
[Etc..  etc.,  as  the  facts  may  be.] 

Total  value  of  real  estate 

Recapitulation. 

Total  value  of  personal  estate  

Total  val  ue  of  real  estate 

Total  yearly  rent  of  real  estate,  $1,250. 


Value. 


$ 

cts. 

1,000 

00 

1,400 

00 

1,160 

00 

350 

75 

3,910 

12,500 

5,200 

400 


18,100 


3,910 
18,100 


State  of  Ohio, county,  ss. 

Before  me,  the  undersigned,  judge  of  the  probate  court  [or  state  what 
other  officer]  in  and  for  said  county,  personally  appeared  A.  B.  guardian 
of  the  person  and  estate  of  C.  D..  a  minor,  who,  being  dulv  sworn,  savs 
that  the  foregoing  [or,  annexed]  inventory  is  a  full  and  true  inventory 
of  the  real  and  personal  estate  of  the  said  minor,  his  ward,  with  the 
value  of  the  same,  and  the  value  of  the  yearly  rent  of  said  real  estate. 

(Signed,)        A.  B. 


Sworn  to  and  subscribed  before  me,  on  this  — 

<!.  II. 


-  day  of ,  a.  d.  18 — . 

Probate  Judge. 

By  I.  J.,  Deputy. 


48 


RESIGNATION,    ETC,    OF    GUARDIAN.  [CHAP.  4,  1, 


CHAPTER  4. 


RESIGNATION,  REMOVAL,  RELEASE,  ETC.,  OF   GUARDIAN. 


Par. 

1.  Continuance  of  guardianship. 

2.  Resignation. 

3.  Form  of  resignation. 

4.  Form  of  journal  entry  in  case  of 

resignation. 
6.  Another  guardian  should  be  ap- 
pointed. 

6.  When  ward  may  select  another 

guardian. 

7.  When  unmarried  female  guardian 

marries. 

8.  When  female  ward  marries. 

9.  Does  marriage  of  male  ward  end 

guardianship  ? 

10.  Death  of  ward. 

11.  Death  of  guardian. 

12.  Removal  of  guardian  from   the 

state. 

13.  When   ward   removes   from    the 

state. 
14-  When   and   under  what  circum- 
stances the   guardian   here 
may  be  removed. 

15.  No  such  removal  made,  unless. 

16.  What  is  to  be  done,  if  guardian 

here  removed. 

17.  Maybe  removed  for  drunkenness, 

etc. 


Par. 

18.  For  not  filing  inventory,  etc. 

19.  Court  must    enforce    guardian's 

duties. 

20.  How  to  enforce  such  duties. 

21.  Complaint,      who      to       make; 

hearing  of. 
22-25.  Form  of  complaint. 

26.  Why     such     complaints     some- 

times necessary. 

27.  Affidavit  to  such  complaint. 
28-9.   Form  of  affidavit. 

30-1.  Form  of  a  citation. 
32.   How  served. 

33-6.  Another  form,  more  commonly 
used  when  served  by  sheriff. 

37.  The  hearing. 

38.  The  discretion  of  the  judge. 
39-40.  What  justifies  removal. 

41.  Proceedings,  when  bond  ex- 
cepted to  notice. 

42-5.  Form  of  journal  entry  upon 
citation  to  remove  a  guar- 
dian. 

46-7.  Form  of  entry  if  charge  not 
sustained. 

48.  Notice  to  guardian  of  ward's 
intended  selection. 


1.   Continuance  of  guardianship. — A  guardian  once  appointed 
and  qualified  to  act,  will  continue  in  that  capacity1  until  the 


1"As  two  persons,  or  sets  of  persons,  can  not  at  the  same  time  hold  the 
game  trust,  it  follows  that  one  guardian  must  be  removed,  or  a  vacancy 
otherwise  created,  before  the  court  can  make  a  new  appointment.  This 
principle,   apparently  simple,  has  sometimes  been   overlooked;  when,  for 


CHAP.  4.  2-4.]       RESIGNATION,    ETC.,    OF    GUARDIAN.  49 

ward  arrives  at  the  age  of  majority,1  unless  such  guardian  sooner 
dies,'2  resigns,3  is  removed  for  cause,4  the  ward  selects  another 
suitable  guardian  at  the  proper  age,6  become  legally  disqualified 
to  act,  as  in  the  case  of  a  female  guardian  who  marries,6  or  in  case 
of  the  marriage  of  the  ward,7  etc. 

2.  Resignation. — The  court  by  whom  any  guardian  has  been 
or  may  be  appointed,  ma}-,  for  reasons  satisfactory  to  such  court, 
accept  the  resignation  of  any  such  guardian,  and  appoint  another 
in  In's  stead.8  But  the  court  should,  in  no  case,  accept  the  resig- 
nation of  any  guardian,  until  he  has  filed  a  full  and  true  account 
of  his  guardianship,  for  final  settlement,  up  to  the  time  he  ten- 
ders his  resignation. 

3.  Form  of  resignation  of  guardian. 

The  undersigned,  heretofore  appointed  by  this  court  guardian 
of  C.  D.,  says,  that  he  has  this  day  filed  a  full,  true,  and  just 
account  of  his  guardianship  up  to  this  time,  and  now  tenders 
his  resignation  of  such  guardianship,  for  reasons  which  he  will 
show  to  the  court,  as  the  court  may  direct. 

(Signed),  A.  B. 

Dated  the day  of ,  a.  d. . 

4.  Form  of  journal  entry,  in  case  of  resignation. 

In  the  matter  of  the  guardianship  of  C.  D. 
This  day  came  the  said  A.  B.,  guardian  of  C.  D.,  and  filed 
his   accounts   for   settlement   up    to   this   time,  and  thereupon 

instance,  a  court  has  issued  new  letters  without  revoking  the  old.  .  .  . 
The  appointment  of  a  new  guardian  does  not  of  itself  terminate  the 
authority  of  one  previously  chosen.  It  is  an  act  without  jurisdiction,  and 
void."     Schouler's  Dom.  Rel.  429. 

1  See  par.  22,  chap.  3. 

2  See  par.  11,  below;  also  3  Redf.  on  Wills,  457. 

3  See  next  par. 

4  See  par.  17,  below. 

5  See  par.  23,  chap.  3. 

6  See  par.  35-36,  chap.  3,  and  par.  7,  below. 

7  See  par.  8,  below. 
8gG274. 

4 


50  RESIGNATION,    ETC.,    OF   GUARDIAN.    [CHAP.  4,  5-9. 

tendered  his  resignation  as  such  guardian,  which,  for  reasons  satis- 
factory to  the  court,  is  hereby  accepted. 

5.  Another  guardian  should  be  appointed. — In  such  case,  another 
guardian  should  be  at  once  appointed,  in  the  manner  already 
laid  down  for  an  original  appointment.1 

6.  When  ward  selects  another  guardian. — When  the  male 
ward  arrives  at  the  age  of  fourteen  years,  or  a  female  at  the 
age  of  twelve  years,  and  selects  a  guardian,  and  such  new 
guardian  is  appointed  and  qualified,  the  powers  of  the  guar 
dian  previously  appointed  cease,  without  further  action  by  the 
court. 

7.  When  unmarried  female  guardian  marries. — When  any  un- 
married woman,  who  has  been  or  may  be  appointed  guardian 
of  any  minor,  shall  marry,  such  marriage  of  itself  determines 
the  guardianship  of  such  woman  ;  and  the  probate  court  of  the 
proper  county  must  appoint  another  guardian  for  such  minor, 
to  which  last  named  guardian  all  the  estate  of  such  minor  must, 
on  demand,  be  delivered  up  by  such  former  guardian  ;  and  she 
must  forthwith  render  her  guardianship  account  to  the  court 
from  which  she  received  her  appointment,  for  final  settle- 
ment.2 

8.  Wlien  female  ward  marries. — The  marriage  of  a  ward,  if  a 
female,  ends  the  guardianship  as  to  the  person,  but  not  as  to  the 
estate,  of  such  ward.3 

9.  Does  marriage  of  male  ward  end  guardianship  ? — The  author- 
ities seem  uncertain  as  to  the  effect  of  a  male  ward's  marriage4 

1  See  chap.  3. 

2§  6292.     See  Appendix,  par.  66. 

s§  62G5 

*"Upon  the  marriage  of  a  male  ward,  the  guardianship  continues  as  to 
his  estate,  though  it  has  been  thought  otherwise  as  to  his  person."  2  Kent. 
226.  (Citing  a  note  as  follows:  "  Reeve's  Domestic  Relations,  328.  By  the 
civil  law,  marriage  did  not  confer  on  a  minor  the  privileges  of  majority. 
Dig.  4,  4,  2;  Code,  5,  37,  12.  But  the  laws  of  modern  nations  are  very 
diverse  on  the  effect  of  marriage  upon  minors.  Marriage  is  an  emancipa- 
tion of  the  minor  to  full  rights  by  the  French  and  Dutch  laws.  Code  Civil 
Art.  476;  Voet.  ad  Pand.  4,  4,  6;  Vanderlinden's  Inst.  b.  1,  e.  5,  sec.  7.) 

"  If  a  male  ward  marry,  I  apprehend  he  has  contracted  a  relation,  and 
one  that  he  had  a  right  to  contract,  wholly  inconsistent  with  a  guardianship 


CHAP.  4,   11-12.]    RESIGNATION,  ETC.,  OF  GUARDIAN.  51 

on  his  wardship;  but  our  statutes  declare  that  the  guardianship  of 
an  infant  ward's  estate  continues  till  the  age  of  majority,1  and,  as  to 
males,  make  no  exceptions.  These  statutes  now  also  provide  for 
making  both  husband  and  wife  of  the  ward  parties  in  actions  for 
sale  of  ward's  real  estate.'  The  marriage  of  a  male  ward  would 
therefore  appear  to  have  no  effect  on  his  relations  with  his  guardian. 

10.  Death  of  ward. — If  the  ward  dies,  the  guardianship 
over  the  estate  ceases,  as  a  matter  of  course,  and  the  guardian 
has  no  further  power  over  the  property.  He  should  then  settle 
his  accounts  finally,  and  if  any  thing  further  is  to  be  done  with 
the  properly  of  the  ward,  an  administrator  should  be  appointed. 

11.  Death  of  guardian.— Jf  the  guardian  dies,  the  power  he 
had  as  guardian,  ceases,  and  his  executor  or  administrator  has 
no  power  to  act  in  that  capacity  ;3  but  it  is  the  duty  of  such  ex- 
ecutor or  administrator  to  render  an  account  of  his  decedent's 
guardianship,  as  directed  in  chapter  9. 

12.  Removal  of  guardian  from  the  state. — The  removal  from 
-  — , . — 

of   bis   person.     As  to   his  estate,    marriage  does   not  vary  his  situation. 
Reeve's  Dom.  Rel.  328.     (No  citations.) 

'■Though  the  court  of  chancery  can  not  appoint  a  guardian  after  mar- 
riage, yet  it  will  not  determine  a  guardianship,  or  discharge  an  order  made 
for  a  guardian  because  of  marriage."  Bacon's  Abr.,  Guardian  (E.)  Citing 
Roach  v.  Garvin,  1  Ves.  159;   Matter  of  Whittaker,  4  Johns.  378.) 

"  The  lawful  marriage  of  any  ward,  whether  male  or  female,  must  neces- 
sarily effect  the  rights  of  the  guardian.  So  far  as  the  ward's  person  is  con 
cerned.  there  can  be  no  question  that  the  guardianship  ends.  Marriage  is 
paramount  to  all  other  relations,  and  its  proper  continuance  being  incon- 
sistent with  guardianship  of  the  person,  the  latter  yields  to  it,  whatever  may 
be  the  sex  of  the  ward.  But  as  to  the  estate,  the  rule,  in  view  of  the  late  mar- 
ried women's  statutes,  is  not.  so  clear.  If,  however,  a  male  ward  marries  a 
female,  whether  she  be  minor  or  adult,  his  guardian  retains  power  over  his 
estate,  as  before,  until  he  becomes  of  age.  Schouler's  Dom.  Rel.  425. 
(Citing  Reeve's  Dom.  Rel.  328;  2  Kent's  Com.  226;  Bacon's  Abr.,  Guardian, 
(E) ;  Eyre  v.  Countess  of  Shaftsbury,  2  P.  Wms.  103;  Mendes  v.  Mendes,  3 
Atk.  619;  lb.  1  Ves.  89;  Jones  v.  Ward,  10  Yerg.  160.) 

The  marriage  of  a  female  ward  terminates  the  guardianship;  it  is  other- 
wise of  the  marriage  of  a  male  ward.  Brick's  estate,  15  Abb-  (N.  Y.)  Pr. 
12;  Holmes  v.  Field,  12  111.  424;  Shutt  v.  Carloss,  1  Ired.  (N.  C.)  Eq.  232; 
Burr  v.  Wilson,  18  Tex.  367  ;  Ware  v.  Ware,  28  Gratt.  (Va.  1877)  670. 

1  See  \\  6258,  6264.  *  See  pars.  8  and  28,  of  chap.  6. 

3  Schouler's  Dom.  Rel.  426. 


52  RESIGNATION,  ETC.,  OF  GUARDIAN.    [CHAP.  4,  13-17. 

this  state  of  any  person  who  has  been  heretofore  or  may  be 
hereafter  appointed  guardian,  will,  of  itself,  determine  the 
guardianship  of  such  person.1 

13.  When  ivard  removes  from  the  state,  what? — Wlien  a  minor, 
for  whom  a  guardian  has  been  appointed  in  this  state,  removes 
to  another  state  or  territory,  and  a  guardian  of  such  infant  is 
there  appointed,  the  guardian  appointed  in  this  state  may  be 
removed,  and  required  to  settle  his  account  as  hereinafter 
provided.2 

14.  When  and  under  what,  circumstances  the  guardian  here  may 
be  removed. — Such  removal  must  not  be  made  unless  the  guardian 
appointed  in  another  state  or  territory  shall  apply  to  the  pro- 
bate court  in  this  state  which  made  the  former  appointment,  and 
file  therein  an  exemplification  from  the  record  of  the  court 
making  the  foreign  appointment,  containing  all  the  entries  and 
proceedings  in  relation  to  his  appointment,  and  his  giving  bond, 
with  a  copy  thereof  and  of  the  letters  of  guardianship,  all  au- 
thenticated as  required  by  the  act  of  congress  in  that  behalf; 
and  before  such  application  can  be  heard,  or  any  action  taken 
therein  by  the  court,  at  least  thirty  days'  written  notice  must  be 
served  on  the  guardian  appointed  in  this  state,  specifying  the 
object  of  the  application  and  the  time  when  the  same  will  be 
heard.3 

15.  _ZVo  such  removal  made,  unless. — No  such  removal  can  be 
made  in  favor  of  any  foreign  guardian,  unless  at  the  time  of  the 
hearing  the  state  or  territory  in  which  he  was  appointed  has 
made  a  similar  provision  as  to  wards  removing  from  such  state 
or  territory;  and  the  court  may,  in  any  case,  deny  the  applica- 
tion unless  satisfied  that  the  removal  of  the  guardian  appointed 
in  this  state  would  be  to  the  interest  of  the  ward.3 

16.  What  to  be  done  if  guardian  here  removed. — If  the  court, 
on  such  hearing,  remove  the  guardian,  the  court  may  cause  all 
suitable  orders  to  be  made  discharging  the  resident  guardian, 
and  authorizing  the  paying  over  and  delivery  to  the  foreign 
guardian  all  moneys  and  other  property  in  the  hands  of  the  res- 
ident guardian  after  his  settlement.4 

17.  May  be  removed  for  cause.—  The  probate  court  may  at  any 
time    remove   a    guardian    appointed    by   such    court,    he   having 


'§6272.     See  note  3,  p.  28;  par.  71,  p.  312.       ^6276.     3  §  6277.     «§  6278. 


CHAP.  4,   18-19.]    RESIGN ATION, 'ETC. ,  OF  GUARDIAN.  53 

thirty  days  notice  thereof,  for  habitual  drunkenness,  neglect  of  his 
duties,  incompetency,  fraudulent  conduct,  removal  from  the  county, 
or  auy  other  cause  which,  in  the  opinion  of  such  court,  renders  it 
for  the  interest  of  the  ward  that  such  guardian  be  removed.1 

18.  For  not  filing  inventory,  etc. — If  the  guardian  fails  to  file 
an  inventory,  as  required  by  law,  for  thirty  days  after  having 
been  notified  so  to  do  by  the  probate  judge,  such  judge  must  re- 
move him.     See  paragraph     5,  chapter.  5. 

19.  Court  must  enforce  guardian's  duties. — It  is  made  the  duty 
of  the  court  b}*  which  any  guardian  has  been  or  may  be  ap- 
pointed, to  enforce  the  return,  at  the  prescribed  times,  of  all  in- 
ventories and  accounts  required  to  be  filed  in  such  court  by  such 
guardian,  and  also  to  enforce  the  performance  of  all  other  duties 
devolving  upon  guardians  appointed  by  such  court,  either  with 
or  without  complaint  being  first  made,  and  thereupon  to  make 
and  enter  such  judgments  and  orders  as  may  be  requisite  in  any 
case  to  promote  the  faithful  and  correct  discharge  of  the  duties 

1  §  6272.  See  also  2  Story  Equity  Jur.  §  1289 ;  Perry  on  Trusts,  §§  276, 
817';   3  Redf.  on  Wills,  458. 

The  removal  of  a  guardian  for  cause  by  the  probate  court  is  within  the 
meaning  of  the  law  which  requires  a  guardian  "at  the  expiration  of  his 
trust  fully  to  account  for  and  pay  over  to  the  proper  person  all  of  the  estate 
of  his  ward  remaining  in  his  hands."  Gorman  v.  Taylor,  43  O.  S.  86. 
See  par.  9,  chap.  5,  p.  64. 

A  guardian  and  his  sureties  are  liable  for  any  money  collected  by  the 
guardian  after  removal,  if  the  person  paying  the  money  does  so  in  good 
faith.     Sage  v.  Hammonds,  27  Gratt.  (Va.)  651. 

A  father,  who.  as  guardian  of  his  minor  children,  received  an  annual  in- 
come of  $2,000  from  their  property,  but  refused  for  a  period  of  several  years 
to  provide  for  their  support  and  education,  was  not  a  suitable  person  to  man- 
age their  estate,  and  was  properly  removed  from  their  guardianship.  In  re 
Swifts,  47  Cal.  629. 

Where  it  appeared  that  a  guardian  failed  to  return  his  account,  employed 
the  slaves  of  his  ward  in  his  own  service,  kept  his  own  stock  on  his  ward's 
land,  and  fed  them  on  the  corn  of  his  ward.  Held,  this  was  a  sufficient 
cause  of  removal.     Ripuos  V .  Hale,  1  Stew.  (Ala.)  166. 

The  insolvency  of  the  guardian  and  of  one  of  his  sureties  is  good  cause 
for  removal.     Re  Cooper,  2  Paige  (N.  Y.)  34. 

Conduct  of  a  guardian  tending  to  alienate  the  ward's  affections  from  its 
mother,  a  person  of  good  character,  is  sufficient  ground  for  removal.  Per- 
kins v.  Finnegan,  105  Mass.  501. 

Mere  whim,  or  caprice,  or  choice,  either  in  the  ward  or  the  friends,  will 
not  be  a  sufficient  ground  of  removal.  The  objection  must  rest  on  substan- 
tial grounds  of  unfitness  in  the  guardian.     3  Redf.  on  Wills,  458. 


54  RESIGNATION,  ETC.,  OP  GUARDIAN.     [CHAP.  4,  20-25. 

of  such  guardians,  or  to  preserve  the  estate  of  minors  for  whom 
such  guardians  may  have  been  or  shall  be  appointed.1 

20.  How  to  enforce  such  duties. — It  is  perfectly  clear  from  the 
three  preceding  paragraphs  that  the  probate  judge  may  enforce 
such  duties  by  removal,  if  necessary,  and  that,  in  certain  cases, 
such  removal  is  imperatively  required. 

21.  Complaint,  who  to  make;  hearing  of. — Any  person  may 
eomplain  to  the  probate  court  of  the  dereliction  of  duty  in  any 
guardian  ;  and  whenever  such  a  complaint  is  made,  or  whenever 
the  probate  judge  himself  knows,  or  has  good  cause  to  believe, 
that  there  is  ground  for  such  a  complaint,  his  duty  is  to  act  at 
once,  and  institute  proceedings  to  inquire  into  the  matter,  of 
course  giving  the  required  notice  of  thirty  days. 

22-25.  Form  of  complaint.  JSTo  special  form  of  complaint  is 
prescribed  in  the  cases  mentioned  in  paragraph  19  above,  but 
the  following  form  may  be  used,  and  adapted  also  to  other  cases 
where  application  is  made  to  the  court  to  do  certain  things: 

To  the  Honorable,  the  Judge  of  the  Probate  Court 
of county,  Ohio  ; 

Your  petitioner  represents  that  E.  F.,  late  of  said  county,  died  on 

or  about  the day  of 18-»-,  leaving  C.  D.  [and  G-.  H.,  etc., 

if  so ;  making  the  proper  changes  below,  if  more  than  one  child  ~\,  his 

minor  child,  and  an  estate  to  be  administered,  woi'th  about  $ ; 

that  on  or  about  the day  of ,  18 — ,  A.  B.  was  appointed 

guardian  of  said  C.  D. ;  and  that  said  guardian  has  neglected 
and  failed  to  file  an  inventory,  as  required  by  law  [or,  has  re- 
moved from  the  state;  or,  has  become  a  habitual  drunkard;  or, 
has  become  a  lunatic  ;  or,  is  incompetent  to  manage  so  important 
a  trust;  or,  that  said  guardian's  bondsman,  P.  Q.,  has  died;  or 
mention  any  other  cause  or  failure  of  duty']. 

Your  petitioner  further  represents  that  he  is  interested  in  said 
minor,  as  adult  brother  [or,  as  a  friend;  or  mention  any  other 
ground  of  interest  in  ward  or  estate],  and  prays  that  citation  may 
issue,  requiring  said  A.  B.  to  appear  before  said  court,  on  the 

day  of ,  18 — ,  at o'clock,  —  m.,  then  and  there  to 

show  cause,  if  any  he  may  have,  why  he  should  not    be   re- 


4§6275.     See  also  par.  65,  p.  178;  par.  81,  p.  182.     Guardian  of  lunatic  or- 
dered to  pay  special  claim.     41  O.  S.  206. 


CHAP.  4,  26-31.]    RESIGNATION,  ETC.,  OP  GUARDIAN.  55 

moved  [or,  give  additional  security;  or  do  any  other  proper  thing 
required  by  law  for  the  good  of  said  minor~\. 

{Signed)  '  N.  F. 

2(i.  JVIiy  such  complaints  sometimes  necessary.  It  may  be 
further  said  of  such  complaints,  that  in  many  counties,  especially 
our  most  populous  ones,  the  probate  judge  can  not  know,  from 
personal  knowledge,  the  condition  of  every  ward's  affairs,  es- 
pecially of  such  matters  as  the  record  does  not  yet  disclose;  for 
instance,  the  removal  from  the  state,  or  death,  of  the  guardiai. 
or  his  sureties.  It  is  true  that  such  information  could  be  con- 
veyed orally  or  by  letter  to  the  judge,  and  that  it  might  then  be 
his  duty  to  act  upon  such  light  as  this  would  give  him  ;  but  it  is 
best  to  give  such  information  in  a  more  formal  way,  and  to  have 
it  filed  among  the  papers  in  the  case. 

27.  Affidavit  to  such  complaint.  Upon  the  strength  of  such  a 
complaint,  the  judge  would,  under  most  circumstances,  issue  a 
citation  against  the  person  complained  of,  even  though  the  law, 
in  some  cases,  authorized  him  to  require  an  affidavit.  As  the  wel- 
fare of  the  ward,  and  especially  the  protection  and  preservation 
of  the  ward's  property,  are  so  completely  intrusted  to  his  watch- 
fulness and  care,  he  should  generally  assume  that  even  seem- 
ingly well  grounded  suspicion  must  be  examined  into,  and  the 
matters  they  relate- to  righted,  if  need  be.  But  should  he  re- 
quire an  affidavit,  it  can  be  added  or  annexed  to  the  foregoing 
complaint,  as  follows: 

28-29.  Form  of  affidavit  to  complaint. 

State  of  Ohio, county,  ss. 

K  F.,  being  duly  sworn,  says  that  the  various  matters  and 
things  set  forth  in  the  foregoing  [or,  annexed]  complaint  are 
true,  to  the  best  of  his  knowledge  and  belief. 

(Signed)  N.  p. 

Sworn  to  and  subscribed  before  me,  this day  of  — — ,  a.  d. 

18 — .  A.  C,  Probate  Judge,  etc. 

30-31.     Form  of  a  citation. 

The  State  of  Ohio,  county,  ss. :  Probate  Court. 

To  A.  B.,  guardian  of  C.  D.  : 

You  are  hereby  notified  to  appear  forthwith  [or,  on  the • 


56  RESIGNATION,  ETC.,  OP  GUARDIAN.     [CRAP.  4,  32-37. 

day  of ,  a.  d.  18 — ,  at  —  o'clock  a.  m.)  at  the  office  of  the 

probate  court  of  said  count3T,  to  answer  why  you  have  not  filed 
your  accounts  as  guardian  as  aforesaid,  according  to  law  [or,  ac- 
cording to  the  order  of  said  court  heretofore  made,  if  such  order 
has  been  made  and  not  complied  with,  or,  why  you  have  not  loaned 
the  money  of  your  said  ward,  according  to  law,  or  state  any  other 
failure  of  duty  or  ground  of  complaint,  as  in  paragraph  23;  and 
also  add,  if  desired],  and  to  show  cause  why  you  should  not  be 
removed  from  such  guardianship. 

Witness  my  hand  and  the  seal  of  said  court,  this day  of 

A.  D,  18—. 

[l.  s.]  A.  C,  Probate  Judge  of  said  Court. 

32.  How  served.  This  citation  may  be  served  by  the  sheriff, 
or  by  any  disinterested  person,  in  like  manner  as  the  notice  is 
served  when  exceptions  are  filed  to  the  bond.1 

33-36.  Another  form,  more  commonly  used  when  served  by  sheriff. 

The  State  of  Ohio, count,y  ss. 

To  the  sheriff  of  our  said  county,  greeting : 

We  command  you  that  you  cite  and  give  notice  to  A.  B.,  guar- 
dian of  C.  D.,  to  be  and  appear  before  A.  C,  judge  of  the  pro- 
bate court  within  and  for  the  county  aforesaid,  at .  on  the 

day  of ,  A.  D.  18 — ,  at  —  o'clock,  —  m.,  then  and  there 

to  show  cause,  if  any  he  may  have,  why  he  has  not  filed  his 
accounts  as  guardian  aforesaid  [or  state  any  other  failure  of  duty, 
etc.,  as  in  preceding  form;  and  also,  if  desired,  and  to  show  cause 
why  he  should  not  be  removed  from  such  guardianship].  And 
of  this  writ  make  due  service  and  return  to  our  said  court,  at 
the  time  and  place  aforesaid. 

In  testimony  whereof,  1  have  hereunto  set  my  hand  and  affixed 

the  seal  of  the  probate  court,  at  ,  this  day  of , 

A.  d.  18—. 

[seal.]  A.  C,  Probate  Judge. 

By ,  Deputy  Clerk. 

37.  The  hearing. — Upon  the  appearance  of  the  guardian,  the 
court  should  inquire  into  the  charges  against  him,  and  if  the 

1  See  pages  170,  171. 


CHAP   4,  38-45.]     RESIGNATION,  ETC.,  OF  GUARDIAN.  57 

court  is  of  the  opinion,  after  such  examination,  that  such  per- 
son is  not  a  proper  or  not  a  competent  person  to  act  as  such 
guardian,  he  should  be  removed,  and  a  new  guardian  should  be 
appointed;  but  if,  upon  the  hearing,  the  coui*t  finds  that  the 
complaint  is  not  sustained,  the  motion  should  be  dismissed,  and 
the  guardian  should  not  be  removed. 

38.  rlhe  discretion  of  the  judge  ought,  no  doubt,  to  be  reason - 
Ably  exercised,  and  with  due  caution,  for  the  guardian  is  not 
without  some  rights,  as  well  as  the  ward,  and  he  ought  not  to  be 
removed  for  a  mere  frivolous  cause  ;  but  there  should  be  some 
substantial  reason,  materially  affecting  the  interests  of  the  ward, 
either  in  his  person  or  property,  as  the  case  may  be.1 

39.  What  justifies  removal. — It-is  not  every  failure  to  perform 
the  full  and  exact  duties  of  guardian  that  will  justify  a  removal ; 
as,  for  instance,  if  a  guardian  should  not  promptly,  on  the  very 
day  his  two  years  expire  for  rendering  his  account,  so  render  it, 
and  when  cited  to  answer  for  the  delinquency,  should  give  a 
reasonable  excuse  therefor,  and  should  then  render  a  fair  and 
just  account,  it  would  not  be  proper  in  such  case  to  remove  him  ; 
whereas,  a  guardian  who  habitually  neglected  his  duties,  in 
whole  or  in  part,  ought  promptl}'  to  he  removed.1 

40.  The  good  sense  and  sound  discretion  of  the  court  will  be 
brought  into  action  in  these  cases  to  the  fullest  extent ;  for  no 
rule  that  will  be  applicable  to  all  cases,  or  even  to  the  majority 
of  cases,  can  be  laid  down. 

41.  Proceedings  when  bond,  exceptedto — notice. — The  proceedings 
in  case  of  exceptions  being  filed  against  the  guardian's  bond,  in 
which  only  ten  days'  notice  is  required,  and  in  which  a  guardian 
may  no  doubt  be  removed,  are  considered  in  chapter  10. 

42-5.  Form  of  journal  entry  upon  citation  to  remove  a  guardian. 

In  the  matter  of  the  guardianship  of  C.  D. 

On  the  motion  of  M.  ~N.  [or,  of  the  court,  if  it  be  so,  without 
the  movement  of  any  one  else~\  to  remove  A.  B.  from  such  guard- 
ianship, on  the  ground  that  [here  state  the  charge  as  in  the  notice']. 

This  day,  this  motion  came  on  to  be  heard,  and  testimony  be- 
ing produced,  and  the  court  being  fully  advised  in  the  premises, 
do  find  that  the  charge  made  against  said  A.  B.,  as  guardian  of 

'See  note  1,  page  53. 


58  RESIGNATION,  ETC.,  OF  GUARDIAN.     [CHAP.  4,  46-48. 

C.  D.,  is  true,  and  that  s-iid  A.  B.  ought  to  be  removed  horn  said 
guardianship;  therefore,  it  is  ordered  by  the  court,  that  said  A. 
B.  be,  and  he  is  hereby  removed  from  said  guardianship,  and  his 
powers  and  authority  therein  revoked  ;  and  it  is  further  ordered, 
that  said  A.  B.  shall  file  in  this  court  a  full  and  just  account  of 

lis  guardians!  p,  within  dajTs,  and   that  he  also  pay  the 

costs  herein, taxed  at dollars,  and  in  default  thereof,  that  an 

execution  issue  therefor,  against  his  individual  property,  as  upop 
judgments  at  law. 

40-7.  Form  of  entry,  if  charge  not  sustained. 

If  the  court,  however,  find  that  the  charge  is  not  sustained,  th.j 
journal  entry  should  be  accordingly.  In  such  case,  the  form  o£ 
the  journal  entry,  after  stating  the  caption  as  in  the  last  form, 
may  be  as  follows  : 

This  day  this  motion  came  on  to  be  heard,  and  the  court  beuio 
fully  advised  in  the  premises,  do  find  that  said  charge  against  said 
A.  B.  is  not  sustained,  and  the  said  motion  is  therefore  dismissed, 

And  it  is  ordered,  that  M.  N.  pay  the  costs  herein, taxed  at 

dollars,  within  days,  and  in  default  thereof,  that  execution 

issue  therefor,  as  upon  judgments  at  law. 

48.  Notice  to  guardian  of  ward's  intended  selection. — As  the 
right  of  the  guardian,  who  is  selected  by  a  minor  of  the  proper 
age  for  selecting  his  own  guardian,  to  supersede  the  forme* 
guardian,  depends  upon  the  fact  that  the  ward  has  attained  that 
age,  as  such  fact  is  not  necessarily  determinable  by  inspection 
in  court,  but  may  be  proved  or  controverted  b}7  other  evidence, 
it  seems  that  such  former  guardian  is  entitled  to  notice  of  the  in- 
tended application  to  the  court  to  appoint  a  new  guardian,  of 
the  ward's  election,  so  as  to  give  him  an  opportunity  of  proving 
the  ward  not  to  be  of  that  age,  if  the  fact  be  so.1 

1 3  Dana,  599. 


CHAP.  5.] 


POWFRS   OP    GUARDIANS. 


59 


CHAPTER  5. 

GENERAL  POWERS  AND  DUTIES,  ETC.,  OF  GUARDIANS. 


Par. 

1.  Powers   of  guardians   of  person 

and  estate. 

2.  Rights  of  parents. 

3.  Statutory  duties  of  guardians  of 

person  and  estate. 

4.  Must  file  inventory. 

5.  Penalty. 

6.  Must  manage  estate. 

7.  Must  render  accounts. 

8.  Penalty. 

9.  Must  settle  fully. 

10.  Must  pay,  compound,  etc.,  debts, 

defend  suits,  etc. 

11.  Must  educate  ward,  when. 

12.  Must   lend    money,  on   what   se- 

curity;   change    of   invest- 
ment ;  penalty. 

13.  Must  obey  court. 

14.  How  guardians,  etc.,  may  invest 

funds. 

15.  Duties  of  guardian  of  the  estate 

only. 
16-20.  Duties  of  guardian  of  person 
only ;    must    protect,    con- 
trol, maintain  and  educate 
his  ward,  etc. 

21.  How  enforced. 

22.  Stock    in   building    associations 

held  by  trustees,  etc. 

23.  Guardian's   and  parent's  powers 

as  to  custody  and  education 
of  minor. 

24.  Certain  minors  may  not  marry, 

unless  guardians,  etc.,  con- 
sent. 


Par. 

25.  But  others  may. 

26.  Such  consent  must  be  witnessed 

and  certified. 

27.  What    the      minister   or    justice 

must  know  before  perform- 
ing the  marriage  ceremony. 
28-30.  The  furm  of  certificate. 

31.  Effect  of  marriage. 

32.  Rights  of  foreign  guardian  of  for- 

eign ward  as  to  his   ward's 
property  in  this  state. 

33.  Guardian    and   others   interested 

may  get  direction  of  court. 

34.  Other  statutory  powers  and  duties 

GENERAL    PRINCIPLES,   ETC. 

35-38.  As  to  duties,  etc.,  not  statu- 
tory. 

39.  As  to  deposits  of  money  in  bank. 

40-41.  Rule  as  to  proper  care  and 
diligence. 

42.  Guardian  responsible  for  criminal 

acts  of  his  agents. 

43.  Must  pay  right  person. 

44.  Guardian  can  in   no  way  derive 

profit     from    ward's    prop- 
erty. 
45-46.  Guardian   can  not   speculate 
with,  nor  use  ward's  money 
in  business. 

47.  Guardian    should    generally   use 

only  the  income. 

48.  Capital  used  for  education. 
49-50.  Purchase  of  ward's  property 

by  guardian  at  his  sale. 


60  POWERS    OF    GUARDTANS.  [CHAP.    5,  1. 

Par.  Par. 

51-52.  Guardian's      purchase     with  68-64.  How  order  for   maintenance 

ward's  money,  granted. 

53.  Contracts  between  guardian  and  65.  A  mother  not  compelled  to  main- 
ward,  tain  her  children. 

64-55.  Gift  from  ward  to  guardian.  66.  Stepfather    need    not     maintain 

56.  The  ward  may  recover  property  stepchildren,  unless. 

wrongfully      conveyed     by  67.  Effect  of  ward's  death, 

guardian.  68-69.  When   one    of    two  or   more 

57.  Ward'sjabor  and  services.  guardians  ceases  to  act. 

58.  When  ward  resides  with  guardian.  70.  Ward  can  not  manage    nor  dis- 

59.  Allowance     of    fixed     sum     for  pose  of  his  estate. 

ward's  maintenance.  71.  Guardian's    duty    as    to    ward's 

60.  Cost  of  litigation,  etc. ;  who  must  character,  etc. 

pay.       •  72.  Repairs. 

61.  Suit  on  uncertain  claims.  73.  Interest   on    registered    govern- 

62.  Obligations  of  parents  and  guard-  ment  bonds,  how  collected 

ians,  as  to  support  of  minor  by  guardian, 

children  considered.  74.  Other  duties,  etc. 

1.  Powers  of  guardian  of  person  and  estate— Every  person  ap- 
pointed guardian  both  of  the  person  and  estate  of  a  minor,  shall 
have  the  custody  and  tuition  of  his  ward,  and  the  management1 

1  The  office  of  trustee  is  one  of  personal  confidence,  and  can  not  be  dele- 
gated. If  a  person  takes  upon  himself  the  management  of  property  for  the 
benefit  of  another,  he  has  no  right  to  impose  that  duty  on  others,  and  if  he 
does,  he  will  be  responsible.  Therefore,  if  a  trustee  confides  his  duties  oi 
the  trust  fund  to  the  care  of  a  stranger,  or  to  his  attorney,  he  will  be  per- 
sonally responsible.  Perry  on  Trusts,  \  402.  See  also  2  Kent's  Com.  223, 
Schouler's  Dom.  Rel.  471 ;  3  Redf.  on  Wills,  527;  and  cases  cited  by  these 
writers;  also,  Eichelberger's  Appeal,  4  Watts,  (Pa.)  84. 

But  under  some  circumstances,  a  trustee  may  deposit  money  in  bank.  See 
paragraph  39. 

And  there  are  circumstances  where  trustees  must  employ  agents.  If 
he  acts  in  accordance  with  the  usages  of  mankind,  and  prudently  for  the 
trust,  as  he  would  have  done  for  himself,  and  according  to  the  usage  of  busi- 
ness, as  if  a  trustee  appoints  rents  to  be  paid  to  a  banker,  at  that  time  in 
credit,  but  who  afterward  breaks,  the  trustee  is  not  answerable.  So  in  the 
employment  of  stewards  and  agents,  if  he  acts  in  the  usual  method  of  busi- 
ness.    Perry  on  Trusts,  §  404 ;  3  Redf.  on  Wills,  528-9. 

It  is  the  duty  of  the  trustee  to  proceed  at  once,  after  his  appointment  and 

'  qualification,  to  receive  the  possession  of  the  trust  property  and  to  protect 

it  from  loss  and  injury ;  and  if  there  are  debts  or  securities  due  and  payable 

to  the  trust  estate,  he  must  proceed  to  collect,  them.     If  loss  or  damage  tc 


CHAP.  5,  2-3.]  POWERS    OF    GUARDIANS.  61 

of  such  ward's  estate  during  minority,  unless  sooner  removed  or 
discharged  from  such  trust,  or  the  guardianship  shall  sooner  de- 
termine from  any  of  the  causes  specified  in  chapter  4.1 

2.  Bights  of  parents.— But  the  statute  expressly  provides  that 
the  father  of  such  minor,  or  if  there  be  no  father,  the  mother, 
if  a  suitable  person,  respectively,  shall  have  the  custody  of  the 
person  and  the  control  of  the  education  of  such  minor.1 

3.  Statutory  duties  of  guardians  of  person  and  estate. — The  fol- 
lowing are  declared  by  the  statutes2  to  be  the  duties  of  every 
guardian  of  any  minor,  who  may  be  appointed  to  have  the  cus- 


the  trust  estate  occurs  from  his  negligence  in  these  respects,  he  would  prob- 
ably be  personally  liable.  Perry  on  Trusts,  \  438;  Schouler's  Dom.  Rel. 
473;  3  Redf.  on  Wills,  540;  but  see  last  part  of  par.  12,  below. 

Unless  authorized  to  do  so  by  will,  a  trustee  will  become  liable  if  he 
allows  money  to  remain  out  and  uncollected  on  personal  security,  even  if  it 
was  so  loaned  or  invested  by  the  testator  himself.  It  is  not  enough  for  an 
executor  to  apply  for  the  payment  through  an  attorney  ;  he  must  follow 
the  collection  actively  by  legal  proceedings,  unless  he  can  show  that  such 
proceedings  would  have  been  futile  and  vain.  Perry  on  Trusts,  \  440.  No 
doubt  this  rule  would  also  apply  to  a  guardian.  See  Lane  v.  Mickle,  46 
Ala.  600;  Walker  v.  Walker,  42  Ga.  135;  3  Redf.  on  Wills,  540. 

An  infant's  guardian  has  power  to  accept  delivery  of  deed  of  conveyance 
to  his  ward.  Barney  v.  Seeley,  38  Wis.  381.  A  guardiau's  responsibility 
for  the  property  of  his  ward  extends  only  to  such  as  is  accessible  to  him. 
Bethune  v.  Green,  27  Ga.  56. 

Guardians  can  not  release  a  debt  due  their  wards.  Horine  v.  Horine,  11 
Mo.  649. 

Guardian  is  ward's  mere  agent,  having  an  authority  not  coupled  with  an 
interest.     Manson  v.  Felton,  13  Pick.  (Mass.)  206. 

If  a  person  has  once  accepted  the  guardianship,  either  expressly  or  by 
implication,  he  can  not  afterwards  avoid  its  duties  and  responsibilities ;  he 
can  only  be  discharged  by  a  decree  of  a  court  having  jurisdiction,  and  upon 
proper  proceedings  had.  Perry  on  Trusts,  §£  268,  401.  See  3  Redf.  on 
Wills,  526. 

One  who,  in  1854,  became  guardian  under  circumstances  sufficient  to  put 
him  upon  inquiry  as  to  the  rights  of  his  ward  to  a  pension  as  heir  of  a 
soldier  of  the  Mexican  war,  Held  to  be  responsible  for  the  amount  of  such 
pension  from  1854  till  his  ward  became  of  age.  Clodfelter  v.  Bost,  70 
N.  C.  733. 

See  note  1,  Page    94. 

1 1  6264. 

2  §  6269,  as  amended,  vol.  77  O.  L.  p.  77. 


62  POWERS    OF    GUARDIANS.  [CHAP.  5,  4-6. 

tody  of  such  minor  and  take  charge  of  the  estate  of  such  minor, 
to -wit : 

4.  First.  Must  file  inventory.  —  To  make  out  and  file, 
within  three  months  after  his  appointment,  a  full  inventor}', 
verified  by  oath,  of  the  real  and  personal  estate  of  his  ward, 
with  the  value  of  the  same,  and  the  value  of  the  yearly  rent  of 
the  real  estate. 

5.  Penalty.  If  the  guardian  fails  to  file  such  inventory  for 
thirty  days  after  he  shall  have  been  notified  of  the  expiration  of 
the  time  by  the  probate  judge,  said  probate  judge  must  remove 
him  and  appoint  a  successor. 

6.  Second.  Must  manage  estate. — To  manage  the  estate  for 
the  best  interest  of  his  ward.1 

1  Where  a  guardian,  for  the  purpose  of  paying  for  improvements  to  land  in 
the  possession  of  or  claimed  bjr  his  ward,  gave  a  lien  on  the  accruing  rents, 
it  was  held  that,  if  the  guardian  had  the  power  to  incumber  the  land,  the 
ward  could  not  overreach  the  lien  by  purchasing  a  paramount  and  better 
title  than  he  had  when  the  lien  was  created;  for  the  contract  of  the  guard- 
ian, made  within  the  extent  of  his  power,  binds  the  ward  the  same  as  if  it 
were  his  own.     Este  v.  Strong,  2  0.  401. 

If  a  guardian  convert  land  scrip,  receivable  at  the  land  office  in  the  pur- 
chase of  public  lands,  into  mone}1,  by  investing  it  in  land  for  himself  and 
others,  and  accounting  with  his  wards  for  the  scrip,  with  interest  from  the 
time  of  its  investment,  he  can  not,  if  he  acted  in  good  faith  in  the  transaction, 
be  charged  as  a  trustee  of  the  land  purchased,  or  compelled  to  account  for 
the  profits  growing  out  of  the  purchase.     Davies  v.  Lowrey.  15  0.  655. 

Land  scrip,  or  certificates  for  money  paid  by  S.,  were  issued  under  the  act 
of  Congress  of  May  23,  1828  (4  U.  S.  Stat.  286),  to  A.,  B.  and  C,  minors, 
and  in  trust  for  the  other  heirs  of  S. ;  the  certificates  were  not  assignable  on 
their  face,  and  were  payable  in  lands.  The  following  note  was  appended 
to  the  certificates:  "The  indorsement  to  be  executed  by  (L.)  guardian  of 
said  heirs."  The  certificates  indorsed  by  A.  B.  C,  and  L.,  guardian  of  said 
heirs,  were  used  by  L.  and  his  partners  in  the  purchase  of  lands,  and  the 
title  taken  by  EL,  one  of  the  partners,  for  their  common  benefit,  the  part- 
ners agreeing,  respectively,  to  pay  L.  their  portions  of  the  amount  of  the 
certificates  in  money.  In  a  proceeding  by  the  unnamed  heirs  of  S.  against 
H.  and  others  in  interest,  charging  said  lands:  Held,  that  L.  had  no  author- 
ity as  guardian  of  A.,  B.  and  C.,to  dispose  of  or  transfer  the  interest  of  the 
other  heirs  in  the  certificates.     1860.     Stoddard  v.  Smith,  11  0.  S.  581. 

A  party  creating  a  lien  on  an  estate  can  not  be  permitted  to  defeat  that 
lieu  by  any  act  of  his  own.  On  this  principle,  where  a  guardian  having 
authority  for  the  purpose,  improved  the  property  of  his  ward,  and  gave  a 


CHAP.  5,  7-8.]  POWERS    OP    GUARDIANS.  03 

7.  Third.  Must  render  accounts — To  render,  on  oath,  to  the 
proper  court,  an  account1  of  the  receipts  and  expenditures  of 
Buch  guardian,  verified  by  vouchers  or  proof,  onee  in  every  two 
years,  or  oftener,  upon  the  order  of  the  court,  made  upon  mo- 
tion of  any  person  interested  in  said  ward,  or  the  property  of 
Buch  ward,  for  good  cause  shown  by  affidavit.1  But  in  all  cases 
where  the  whole  estate  of  said  ward,  or  of  several  wards  jointly, 
under  the  same  appointment  of  guardianship,  does  not  exceed 
two  hundred  dollars  in  value,  said  guardian  can  only  be  re- 
quired to  render  such  account  upon  the  termination  of  said 
guardianship,  or  upon  the  order  of  said  court,  made  upon 
its  own  motion,  or  the  motion  of  some  person  interested 
in  said  ward  or  wards,  or  in  his,  her,  or  their  property, 
for  good  cause  shown,  and  set  forth  upon  the  journal  of  said 
court. 

8.  Penalty.  Should  the  guardian  fail  to  render3  any  account 
required  in  the  preceding  paragraph,  for  thirty  days  after  he 
shall   have  been   notified  of  the  expiration  of  the  time  by  the 

lien  on  the  accruing  rents  for  the  payment  of  the  costs  of  the  improvements, 
it  is  not  competent  for  the  ward,  by  the  purchase  of  a  paramount  title,  to 
defeat  that  lien.  The  act  of  the  guardian  must  be  regarded  as  equally  bind- 
ing on  the  ward,  as  if  his  own,  when   of  full  age.     Este  v.  Strong,  2  O.  401. 

See  note  1,  page  94.  As  to  damages  for  hurts  to  infants,  see  43  O.  S.  91 ; 
46  O.  S.  283. 

"  It  may  be  remarked,  in  general,  that,  if  any  one  of  the  acts  which  in- 
fants are  disabled  from  doing  of  themselves,  is  requisite  to  be  done  to  pro- 
tect their  interests,  they  are  to  be  done  by  their  guardians."  Walker's  Am. 
Law,  257. 

xSee  notes,  pajies  150-152,  164-166. 

2  It  is  believed  that  the  meaning  of  this,  expressed  a  little  differently,  is 
as  follows:  That  the  guardian  must  render,  on  oath,  as  often  at  least  as 
once  in  two  years,  an  account  of  his  receipts  and  expenditures  as  such 
guardian,  verified  by  vouchers  or  proof;  but  that  any  person  interested  in 
the  ward,  or  in  the  ward's  property  may,  for  any  cause  shown  by  affidavit  to 
be  good,  ask  the  court,  by  motion,  to  require  such  an  account  oftener  than 
once  in  two  years,  and  that,  if  the  court  considers  the  reason  given  to  be  a 
good  one,  it  will  grant  the  request. — /  Ed.] 

A  trustee  is  bound  to  keep  clear,  distinct,  and  accurate  accounts.  If  he 
does  not,  all  presumptions  are  against  him,  and  all  doubts  and  obscurities 
are  to  be  taken  adversely  to  him.     See  Perry  on  Trusts,  §§821,  911. 

'For  directions  as  to  preparing  such  accounts,  etc,  see  chapter  9. 


64  POWERS   OF    GUARDIANS.  [CHAP.  5,  9-12 

probate  judge,  he  will  receive  no  allowance  for  services,  unless 
the  court  enters  upon  its  journal  that  such  delay  was  necessary 
and  reasonable. 

9.  Fourth.  Must  settle  fully — At  the  expiration  of  his  trust 
fully  to  account  for  and  pay  over  to  the  proper  person,  all  of  the 
estate  of  his  ward  remaining  in  his  hands.1 

10.  Fifth.  Must  pay,  compound,  etc.,  debts,  defend  suits,  etc — To 
pay  all  just  debts  due  from  such  ward,  out  of  the  estate  in  his 
hands,  and  collect  all  debts  due  such  ward,  and,  in  case  of  doubt- 
ful debts,  to  compound  the  same,  and  to  appear  for  and  defend, 
or  cause  to  be  defended,2  all  suits  against  such  ward. 

11.  Sixth.  Must  educate  wards,  when. —  When  any  ward 
has  no  father,  or  having  a  father  who  is  unable  or  fails  to  edu- 
cate such  ward,  it  shall  be  the  duty  of  his  guardian  to  pro- 
vide for  him  such  education3  as  the  amount  of  his  estate  may 
justify. 

12.  Seventh.  Must  lend  money,  on  what  security ;  change  of 
investment ;  penalty — To  loan  or  invest  the   money  of  his  ward 

1See  note  1,  page  60.    Newton  v.  Hammond,  38  0.  S.  430. 

2  Under  the  act  of  Jul}-  1,  1858  (S.  &  C.  673,  {$  14,  15),  which  require  guard- 
ians of  infants  to  "  appear  for  and  defend,  or  cause  to  be  defended,  all  suits  " 
against  the  infant,  a  guardian  is  authorized  to  appear  for  an  infant  to  a  pe- 
tition for  dower,  and  where  he  appears  and  answers  as  guardian,  and  his 
answer  is  received  and  acted  on  by  the  court,  the  effect  is  the  same  as 
though  he  had  been  expressly  appointed  guardian  ad  litem,  and  had  ap- 
peared and  answered  as  such.     1871.     Rankin  v.  Kemp,  21  0.  S.  651. 

The  act  of  1824  (2  Chase,  1308),  regulating  the  sales  of  land  by  executors 
and  administrators,  did  not  direct  the  mode  in  which  the  heirs  should  be 
made  parties,  and  the  courts  adopted  such  practice  as  they  deemed  expe- 
dient. Where  minor  children  who  were  not  named  in  the  petition  had  an 
appearance  entered  for  them  in  court  by  their  guardian,  while  the  petition 
was  pending,  they  were  bound  by  the  order  of  sale.  Whatever  irregularity 
there  was  in  such  practice,  it  did  not  affect  the  purchaser,  who  held  his  title 
as  securely  as  a  purchaser  at  sheriff's  sale,  under  a  judgment  at  law,  or  a 
decree  in  chancery.     1835      Ewing's  Lessee  v.  Higby,  7  O.  1  pt.  198. 

And  see  Ewing  v.  Hollister,  7  O.  2  pt.  138,  sustaining  legality  of  same. 

Where  an  action  is  prosecuted  by  A.,  guardian  of  B.,  on  an  instrument 
payable  to  "A.,  guardian  of  B.,"  the  fact  that  the  ward  becomes  of  age 
pending  the  suit  affords  no  grounds  to  abate  it.     Gard  v.  Neff,  39  O.  S.  607 

See  R.  R.  v.  Hutchins,  37  O.  S.  282,  as  to  sufficient  petition,  in  certain 
case. 

3 The  following  extract,  full  of  accepted  law,  excellent  judgment,  and 
sound,  practical  common  sense,  is  commended  to  the  careful  consideration 
of  every  guardian :  "  The  general  rules  of  law  governing  all  cases  are  that 


CHAP.  5,  12.]  POWERS    OF    GUARDIANS.  65 

within  a  reasonable  time1  after  he  receives  it,  in  notes  or  bonds 
secured  by  first  mortgage2  on  real  estate  of  at  least  double  the 

the  guardian  shall  procure  proper  food,  and  clothing,  for  his  ward,  and  the 
opportunity  to  acquire  the  elements  of  practical  education,  both  secular  and 
religious,  so  long  as  his  estate,  or  the  earnings  of  the  ward  will  warrant  it. 
Beyond  this  must  depend  upon  the  extent  of  his  property  and  his  reasona- 
ble expectations  in  life,  with  reference  to  which  the  ward  may  expect  his 
guardian  will  afford  him  the  opportunities  of  education  and  instruction. 
Every  ward  who  has  the  means  of  subsistence  without  manual  labor,  has 
the  right  to  have  that  means  applied,  to  a  reasonable  extent,  in  procuring 
him  indispensable  support  and  education.  Beyond  this  the  guardian  would 
not  be  expected,  ordinarily,  perhaps,  to  expend  more  than  the  income  of  the 
estate  in  procuring  that  extent  of  instruction  which  is  merely  ornamental, 
and  which  comes  more  especially  within  the  range  of  the  elegant  arts,  or 
the  higher  studies  connected  with  education,  which  may  tend  to  gratify  the 
taste,  or  the  laudable  ambition  of  the  ward,  but  which  do  not,  in  any  sensi- 
ble degree,  qualify  him  for  the  essential  duties  of  life.  And  if  the  estate  of 
the  ward  is  very  large,  the  guardian  would  not  be  expected  to  expend  all 
the  income,  probably,  for  the  mere  purpose  of  the  indulgence  of  the  ward, 
or  in  vain  attempts  to  accomplish  such  attainments  as  were  not  within  the 
compass  of  his  capacit}'.  The  guardian  is  to  exercise  a  reasonable  discre- 
tion in  this  as  in  all  other  respects;  and  while  he  denies  his  ward  no  reason- 
ble  indulgence,  which  is  consistent  with  the  extent  of  his  fortune  and 
fairly  within  the  range  of  reasonable  support  and  education,  according  to  his 
just  expectations  in  life,  he  is  at  the  same  time  to  hold  such  a  firm  and 
steady  hand  over  all  the  expenditures,  for  the  benefit  of  his  ward,  as  will 
commend  itself  to  the  approbation  of  a  prudent  and  just  judge,  who  maybe 
called  to  examine  and  adjust  his  accounts ;  and  will  not  leave  the  ward, 
when  he  comes  to  control  his  own  affairs,  to  entertain  sorrow  or  regret  that 
he  had  not  fallen  under  a  more  discreet  and  prudent  guardianship."  3  Red- 
field  on  Wills,  456-7.     See  note  2,  page  90. 

The  guardian  is  the  proper  judge  as  to  the  school  or  university  at  which 
his  ward  shall  be  educated  ;  and  the  court  will  compel  the  obedience  of  the 
ward  to  the  selection,  unless  some  reasonable  objection  is  shown.  But  if 
there  are  two  or  more  guardians  appointed  for  the  ward,  and  they  disagree 
as  to  the  mode  of  education,  the  court  will  exercise  its  own  discretion  on  the 
subject,  and  will  not  regard  itself  bound  by  the  wishes  of  the  majority  upon 
the  subject.  Tyler  on  Inf.  &  Cov.  \  174.  (Citing  Tremain's  case,  Strange, 
168,  and  Hall  v.  Hall,  3  Atk.  721. 

A  guardian  will  not  be  permitted  to  do  any  thing  prejudicial  to  his  ward, 
and  courts  will  not  construe  any  of  his  acts  so  as  to  prejudice  them.  Tor- 
rey  v.  Black,  65  Barb.  (N.  Y.)  417. 

1  See  note  1,  page  67. 

2  Mortgages  on  real  estate  are  considered  proper  investments  in  all  of  the 

5 


66  POWERS    OF    GUARDIANS.  [CHAP.  5;  12. 

value  ef  the  money  loaned  or  invested,  exclusive  of  improve- 
ments, timber,  or  minerals,  subject  to  destruction  or  exhaustion, 
in  bonds  of  the  United  States,  or  of  any  state  on  which  default 
has  never  been  made  in  the  payment  of  interest,  or  bonds  of 
any  county  or  city  in  this  stale,  issued  in  conformity  to  law  ;  or, 
with  the  consent  and  approbation  of  the  probate  court,  in  pro- 
ductive real  estate  within  this  state,  the  title  to  which  must  be 
taken  in  the  name  of  the  guardian  as  such  ;  and  to  manage  such 
investments,  and  when  deemed  proper,  change  the  same  into 
any  other  investment  of  the  above  classes;  but  no  real  estate  so 
purchased  can  be  sold  by  the  guardian,  except  with  the  consent 
and  approbation  of  the  probate  court ;  and  if  said  guardian  fail 

United  States;  and  mortgages  upon  real  estate,  of  which  the  borrower  is  the 
absolute  owner  in  fee  simple,  taken  with  proper  caution  as  to  the  amount 
and  title,  are  considered  safe  and  proper  investments.  In  all  cases  the 
trustee  must  use  great  care  and  diligence  in  ascertaining  the  valuation,  sit- 
uation, condition,  and  productiveness  of  the  real  estate  or  other  property 
upon  which  it  is  proposed  to  make  a  loan  of  the  trust  money;  for  he  will 
be  liable  for  the  loss  if  he  is  guilty  of  any  negligence  in  this  respeet.  Perry 
on  Trusts,  §  458. 

But  trustees  can  not  lend  money  on  mortgage  to  one  of  themselves. 
lb.  8461. 

It  is  a  universal  rule  that  trustees  can  not  invest  money  in  personal  secu- 
rities; and  even  if  they  have  a  discretion  as-  to  the  kind  of  investments  they 
may  make,  it  is  not  sound  discretion  to  invest  in  personal  securities.  In  the 
words  of  an  eminent  authority  [Lord  Kenyon],  "  No  rule  is  Letter  established 
than  that  a  trustee  can  not  lend  on  a  mere  personal  security,  and  it  ought 
to  be  rung  in  the  ears  of  every  one  who  acts  in  the  character  of  trustee." 
lb.  §  453. 

A  guardian  lending  trust  funds  to  a  man  in  active  business,  without  secu- 
rity, will  be  held  responsible  for  its  loss.  Clark  v.  Garfield,  8  Allen  (Mass.) 
427  ;  of  similar  tenor,  Lee  v.  Lee,  55  Ala.  590. 

A  guardian  or  trustee,  in  the  absence  of  specific  directions,  may,  by  the 
common  law  of  England,  loan  on  mortgage  of  real  estate  or  invest  in  gov- 
ernment stocks  only,  unless  otherwise  directed  by  order  of  court.  A  trustee 
investing  in  the  ordinary  mode  is  not  responsible  for  loss  if  he  act  honestly 
and  with  the  common  prudence  and  skill  of  competent  men.  The  law  does 
not  require  of  him  the  care  and  skill  of  the  most  cautious  or  shrewdest 
money-makers.     Miller  v.  Proctor.  20  0.  S.  442. 

If  a  guardian,  instead  of  loaning  his  ward's  money,  use  it  himself,  though 
his  liability  is  greater  thereby,  it  is  not  a  breach  of  the  bond,  so  long  as  he 
has  the  money  ready  to  pay  over  on  legal  demand.  Case  v.  State  (Hock- 
ing Dist.  Ct.  1852),  10  W.  L.  J.  163.     (But  see  pars.  45,  46,  chap.  5.) 


CHAP.  5,  13.]  POWERS    OF    GUARDIANS.  67 

to  loan  or  invest  the  money  of  his  ward  within  such  reasonable 
time,  he  must  account  on  settlement  for  such  money  and  interest 

thereon,  calculated  with  annual  rests:1  and  also  to  settle  and  ad- 
just, when  necessary  or  desirable,  the  assets  which  he  may  re- 
ceive, in  kind,  from  an  executor  or  administrator,  as  may  be 
most  advantageous  to  his  wards;  but  before  such  settlement  and 
adjustment  will  be  valid  and  binding,  it  must  be  approved  by 
the  probate  court,  and  such  approval  entered  on  its  journal  :  and 
with  the  like  approval,  to  hold  the  assets  as  received  from  the 
executor  or  administrator,  or  what  may  be  received  in  the 
tlementand  adjustment  ol  said  assets.  (See  also  par.  1  1,  below.) 
13.  Eighth. — Must  obey  court.  To  "hey  and  perforin  all  orders 
and  judgments  of  the   proper  courts  touching  the  guardianship. 


1  Where  a  guardian  had  an  opportunity  to  show  any  excuse  for  failure  to 
invest  tin-  money  of  his  ward,  but  introduces  no  evidence,  the  court  will 
not  presume  inability  to  invest  to  excuse  him  from  interest.  Nor  will  it  ex- 
cuse him  that  if  the  money  had  been  invested  in  certain  stocks,  then  deemed 
the  best  in  the  city,  it  might  have  been  wholly  lost.  1834.  Armstrong  v. 
Miller,  W.  562 

The  object  lor  which  a  guardian  is  appointed  is  to  keep  his  ward's  funds 
safely  and  to  render  them  productive.  If  he  fails  to  invest  them  produc- 
tive]}', when  he  could  do  so,  he  is  chargeable  with  interest.  Armstrong  v. 
Miller,  6  0.  lis,  124. 

It  is  a  general  rule  that  trustees  should  loan  more  on  real  estate  of  a 
fixed  and  permanent  value,  and  not  so  much  on  property  with  houses  of  a 
perishable  nature,  or  upon  property  of  a  fluctuating  or  contingent  value. 
But  a  gurdian  or  trustee  who,  iu  good  faith  and  with  ordinary  prudence,  in- 
vests in  a  mortgage  security  to  two-thirds  the  market  price  of  unimproved 
lands  adjacent  to  a  growing  city,  or  in  a  new  state,  the  value  of  which  land 
i^  generally  estimated  on  fair  anticipations  of  an  influx  of  population,  and 
contingent  thereon,  is  not  liable  for  depreciation  in  value,  caused  by  finan- 
cial derangement  or  diminished  immigration,  which  could  not  have  been 
reasonably  foreseen.  In  re  Spencer's  appeal.  1861.  (Logan  Co.  Common 
Pleas.)     3  W.  L.  M.  408. 

Trustees  must  invest  trust  funds  in  their  hands  in  the  manner  directed, 
within  a  reasonable  time,  though  they  are  subject  to  no  specific  directions 
as  to  the  time  and  manner  of  investment/or  they  will  be  charged  interest  on 
the  fund,  and  will  be  required  to  make  good  any  loss  or  damage  suffered  on 
account  of  such  delay.  What  is  reasonable  time  depends  on  circumstances. 
One  year  has  been  so  held  in  several  cases,  more  especially  relating  to  ad- 
ministration. The  U.  S.  Supreme  Court,  in  Barney  v.  Saunders,  16  How. 
543,  held  three  months  to  be  reasonable  time  within  which  to  invest  trust 


68  POWERS    OF    GUARDIANS.  [CHAP    5,  14-15. 

14.  How  guardians,  etc.,  7>iay  invest  funds.  Guardians  trustees, 
executors,  and  administrators  may,  when  they  have  funds  be- 
longing to  the  trust  which  are  to  be  invested,  invest  tin-  same  in 
the  certificates  of  the  indebtedness  of  this  state  or  of  the  United 
States,  or  in  such  other  securities  as  may  be  approved  by  the 
court  having-  control  of  the  administration  of  the  trust.1 

15.  Duties  of  guardian  of  the  estate  only.     When  the  guardian 

funds  paid  to  a  banker,  and  charged  the  trustee  for  the  sum  lost  by  failure 
of  the  banker  after  that  time,  except  small  amounts  paid  in  from  time  to 
time,  derived  from  rents,  interest  and  dividends.  Guardians  and  trustees 
are  held  to  a  stricter  rule  in  relation  to  investments  than  executors  acting 
as  trustees,  as  guardians  generally  take  an  estate  ready  to  be  invested.  See 
Perry  on  Trusts,  §462;  2  Kent's  Com.  230-1;  Tyler  on  Inf.  and  Gov.,  §175; 
Schouler's  Dom.  Rel.  475;  Barney  v.  Saunders,  16  How.  54;!;  Ashley  v. 
Martin,  50  Ala.  537;  Be  Mott,  26  N.  J.  Eq.  509;  Bradford  v.  Bodfish, 
39  la.  681 ;  Colburn  v.  State,  47  Ind.  310. 

In  the  absence  of  statutory  provisions  similar  to  the  foregoing,  the  general 
rule  established  by  the  courts  is  that  guardians  must  be  charged  with  an- 
compounded  interest,  at  the  legal  rate,  from  the  time  beyond  which  it  was 
unreasonable  for  him  to  retain  it  unproductive  to  the  ward,  subject  to  the 
qualification  that  if  the  guardian  has  made  more  from  the  money  in  any 
way  than  such  interest,  he  must  account  for  all  he  has  made;  and  ah'o,  that 
if  he  was  bound  to  have  made  any  specific  designated  investment,  he  should 
account  for  all  the  income  that  would  have  resulted  therefrom,  or  to  such 
interest,  at  the  option  of  the  ward ;  and  the  court  might,  in  its  discretion, 
subject  the  guardian  to  the  payment  of  compound  interest.  Perry  on 
Trusts,  I  468-472 ;  Tyler  on  Inf.  and  Cov.  \  175. 

1  §  6413.  This  section  further  provides  that  "  Whenever  money  coming 
into  the  hands  of  an  executor,  administrator,  trustee,  agent,  assignee,  attor- 
ney, or  officer,  shall  be  stopped  therein  by  reason  of  litigation  or  other 
lawful  cause,  and  the  same  will  probably  be  so  detained  for  more  than  six 
months,  such  executor,  administrator,  trustee,  agent,  assignee,  attorney,  or 
officer,  may  invest  the  same  during  such  detention  in  the  same  manner  that 
trust  funds  are  now  authorized  by  law  to  be  invested,  or  in  such  other  man- 
ner as  the  probate  court  or  other  court  haviug  jurisdiction  of  the  pending 
litigation,  or  person  aforesaid,  may  direct." 

By  mentioning  who  may  invest  money  so  stopped,  and  omitting  guardians 
from  this  list,  the  law  seems  to  prohibit  them  from  investing  monej'  tempor- 
arily stopped  in  their  hands.  In  such  case,  especially  if  the  sum  were  con- 
siderable, it  would  be  judicious  to  apply  for  an  order  of  court,  directiug  in 
what  manner  such  funds  should  be  cared  for  during  such  detention. 

See  paragraph  12,  above,  and  notes  thereto. 


CHAP.  5,  16-22.]  POWERS  OF  GUARDIANS.  69 

is  appointed  to  take  charge  only  of  the  estate  of  the  minor,  his 
duties  are  the  same  as  those  above  specified  in  paragraphs 
3-l:j.,  except  that  he  will  not  be  required  to  perform  the  sixth 
duty  there  mentioned,  if  a  guardian  of  the  person  of  such  minor 
has  been  appointed.3 

l(i.  Duties  of  guardian  of  person  only ;  must  protect,  control, 
maintain,  and  educate  his  ward,  etc. — When  a  guardian  is  ap- 
pointed to  have  the  custody,  maintenance,  and  education  of  a 
minor,  his  duties  are  as  follows  : 2 

17.  First.     To  protect  and  control  the  person  of  the  ward. 

18.  Second.  To  provide  a  suitable  maintenance  for  his  ward, 
when  necessary,  which  must  be  paid  out  of  the  estate  of  such 
ward  in  the  hands  of  the  guardian  of  such  estate,  upon  the  order 
of  the  guardian  of  the  person  of  such  ward. 

19.  Third.  When  such  ward  has  no  father  or  mother,  or 
having  a  father  or  mother,  and  such  parent  is  unable  or  fails  to 
maintain  or  educate  such  ward,  it  is  the  duty  of  the  guar- 
dian so  appointed,  to  provide  for  him  such  maintenance  and 
education  as  the  amount  of  his  estate  may  justify,  which  must 
be  paid  out  of  the  estate  of  such  ward  in  the  hands  of  the  guar- 
dian of  such  estate,  upon  the  order  of  the  guardian  of  the  person 
of  such  ward. 

20.  Fourth.  To  obey  and  perform  all  the  orders  and  judg- 
ments of  the  proper  court,  touching  the  guardianship.3 

21.  How  enforced.  How  these  duties  are  to  be  enforced  is 
specified  in  chapter  4. 

22.  Stock  in  building  associations  held  by  trustees,  etc.  All  shares 
of  stock  held  in  such  associations  by  or  in  the  name  of  a  minor, 
must,  upon  application  therefor,  be  paid  to  such  minor  or  persons 
who  hold  such  shares  of  stock  for  the  minor,  and  it  will  be  a  valid 
payment.4 

lg  6270. 

2  The  guardian  is  the  judge  in  the  first  instance,  of  what  are  necessaries 
for  the  infant,  his  ward.  If  he,  acting  in  good  faith,  refuses  his  consent  to 
the  ward's  taking  a  journey,  undertaken  only  for  the  purposes  of  pleasure 
and  companionship  with  her  friends,  another  person  who  advances  money 
for  the  expenses  of  the  journey,  can  not  recover  it  from  the  ward,  after  ma- 
joriiy  as  "  necessaries."     McKanna  v.  Merry,  61  111.  177.     See  note  3,  p.  64. 

3 1  6271.  4 1  383G,  as  am.  83  O.  L.  117. 


70  POWERS  OF  GUARDIANS.  [CHAP.  5,  23-25. 

23.  Guardians'  and  parents'  powers  as  to  custody  and  education 
of  minor.  For  the  sake  of  avoiding  confusion,  it  may  be  well  to 
summarize  the  various  provisions  of  the  law  relating  to  the  re- 
spective right  of  the  parents  and  guardians  in  this  matter,  which 
provisions  might  seem,  at  a  hasty  glance,  to  be  in  conflict  in 
some  respects:  First.  The  guardian  of  the  person  only  of  a  minor 
has  the  custody  and  must  provide  for  the  education  of  such 
ward,  as  the  parents  of  such  ward  must  be  either  dead,  or  are 
unsuitable  persons  to  be  intrusted  with  these  duties.1  Second. 
The  guardian  of  the  person  and  estate  of  a  minor  does  not  have 
the  custody  of  the  person,  nor  the  control  of  the  education  of 
such  ward  j.  unless  the  ward  has  neither  father  nor  mother,  or 
unless  ^jj^v$arents  are  respectively  unsuitable  persons  to  be  in- 
trusted therewith.2  Third.  The  guardian  of  the  estate  only  has 
nothing  to  do  with  the  custody  of  the  person,  nor  with  the  edu- 
cation of  his  ward,  except  to  pay  the  proper  bills  therefor  out 
of  the  ward's  estate.3 

24.  Certain  minors  may  not  marry,  unless  guardian,  etc.,  consent. 
Male  persons  under  the  age  of  twentj^-one  years,  and  female 
persons  under  the  age  of  eighteen  years,  must  first  obtain  the 
consent  of  their  fathers,  respectively,  or  in  case  of  the  death  or 
incapacity  of  their  fathers,  then  of  their  mothers  or  guardians, 
before  they  can  be  joined  in  marriage.4 

2.").  Others  may.  Male  persons  of  the  age  of  eighteen  years, 
and  female  persons  of  the  age  of  sixteen  years,  not  nearer  of  kin 
than  second  cousins,  and  not  having  a  husband  or  wife  living, 
may  be  joined  in  marriage,  if  consent  as  above  directed  be  first 
obtained.4 

1  §  6255 ;  §  6260 ;  Third  of  ?  6271.    See  par.  18,  chap.  3 ;  pars.  16-19,  chap.  6. 

2  §6255;  §6264;  Sixth  of  \  6269.  See  pars.  19,  33,  chap.  3;  pars.  1,2, 
11,  chap.  5. 

3g£  6270,  6269.     See  paragraphs  15,  18,  19,  this  chapter. 

*§6384. 

The  marriage  contract  of  one  affected  with  congenital  imbecility  of  mind, 
to  a  degree  rendering  him  incapable  of  consent,  is  void  ad  initio.  A  court 
of  chancery,  in  the  exercise  of  its  ordinary  powers,  will  entertain  jurisdiction, 
at  the  suit  of  the  imbecile's  guardian,  to  declare  such  marriage  a  nullity. 
Waymire  v.  Jetmore,  22  0.  S.  271. 

Mutual  promises  to  marry  in  the  future,  though  made  by  parties  compe- 
tent to  contract,  and  followed  by  cohabitation  as  husband  and  wife,  do  not 


CHAP.  5,  26-27]  POWERS  OF  GUARDIANS.  71 

26.  Such  consent  must  be  witnessed  and  certified.  If  any  of  the 
persons  intending  to  marry  are  under  age,  and  have  not  had  a 
former  wife  or  husband,  the  coneenl  of  the  parents  or  guardians 
must  be  personally  given  before  the  probate  judge,  or  certified 
under  the  hand  of  such  paronl  or  guardian,  attested  by  two 
witnesses,  on.' of  whom  must  appear  before  said  judge,  and  make 
oath  that  he  saw  the  parent  or  guardian,  whose  name  is  annexed 
to  such  certificate,  subscribe,  or  beard  him  or  her  acknowledge 
the  same;  and  the  probate  judge  is  authorized  to  administer  such 
oath,  and  thereupon  issue  and  sign  a  proper  license,1  and  affix 
thereto  the  seal  of  the  court.2 

27.  What  tin'  minister  or  officer  mud  know  before  'performing  the 
ceremony.  Every  minister,  mayor,  or  justice  of  the  peac£>  must, 
lie!-. re  he  solemnizes  any  marriage  between  parties,  either  of  whom 
is  required  by  the  provisions  of  paragraph  24  above,  to  obtain  the 
consent  of  his  or  her  parent  or  guardian  (except  in  cases  where 
license  has  been  obtained  from  the  judge  of  the  probate  court),  be 
satisfied  that  the  marriage  bans  have  been  duly  published,  and  also 
that  the  consent  of  such  parent  or  guardian  has  been  obtained, 
either  by  acknowledgment  in  presence  of  such  minister,  mayor, 
or  justice  of  the  peace,  or  by  a  certificate  under  the  signature  of 
such  parent  or  guardian,   and  attested    by  one  or  more    credible 

constitute  a  valid  marriage.  Duncan  v.  Duncan,  10O.  S.  181;  but  where  the 
person  who  solemnized  the  marriage  had  no  license,  it  was  held  that  it  was 
to  be  inferred  that  the  parties  openly  and  mutually  consented  to  a  contract 
of  present  marriage — then  to  become  husband  and  wife — and  when  they 
thereafter  cohabited  as  such,  that  this  constituted  a  legal  marriage,  and  the 
man  having  then  a  wife  living,  might  properly  be  convicted  of  bigamy,  on 
proof  of  such  second  marriage.     Carmichael  v.  State,  12  0.  S.  553. 

Marriages  contracted  in  this  state  by  male  persons  under  the  age  of 
eighteen,  and  females  under  the  age  of  fourteen,  are  invalid,  unless  con- 
firmed by  cohabitation  after  arriving  at  those  ages  respectively ;  and  such 
marriage,  not  so  confirmed,  does  not  subject  a  party  to  punishment  for 
bigamy  for  contracting  a  subsequent  marriage  while  the  first  husband  or 
wife  is  living.     Shafher  v.  State,  20  0.  1. 

1  In  an  action  for  damages  by  a  father,  for  the  wrongful  issuing  of  license 
for  the  marriage  of  his  daughter,  evidence  of  the  bad  character  of  the  hus- 
band may  be  received  and  considered  by  the  jury  in  aggravation  of  damages. 
Larwill  r.  Kirby,  14  0.  1. 

2  2  6390,  as  amended,  82  0.  L.  202. 


72  POWERS   OF   GUARDIANS.  [CHAP.  5,  28-33. 

witnesses,  who  must  be  present  for  the  purpose  of  satisfying  such 
minister,  mayor,  or  justice,  that  such  certificate  was  actually  signed 
by  the  parent  or  guardian,  for  the  purpose  aforesaid.1 

28-30.    The  form  of  such  certificate  may  be  as  follows: 

I  hereby  certify,  that  I  give  my  consent,  as  guardian  of  C.  D., 
that  he  [or,  she,  as  the  case  may  be]  may  marry  O.  P. 

Witness  my  hand,  this  day  of ,  A.  D.  . 

Attest:  A.  B., 

(Two  witnesses  sie/ti  here.)  Guardian  of  C.  D. 

31.  Effect  of  marriage  on  the  guardianship.  For  effect  of  the 
ward's  marriage  on  his  or  her  guardianship,  sec  page  50. 

32.  WJtrn  foreign  guardian  of  foreign  ward  may  demand  or  receive 
property  of  his  ward  in  this  state. — In  any  case  in  which  a  guardian 
not  appoiuted  in  this  state  and  his  ward  are  both  non-residents  of 
this  state,  and  the  ward  is  entitled  to  money  or  other  property  in 
the  lawful  custody  of  any  executor,  administrator,  or  other  person 
in  this  state,  such  guardian  may,  by  the  order  of  the  probate  court 
of  the  proper  county,  upon  filiug  therein  the  proofs  named  in 
paragraph  14,  of  chapter  4,  and  giving  notice  to  such  custodian  as 
therein  prescribed,  be  permitted  to  demand,  receive,  or  recover,  by 
suit,  such  money  or  other  property,  and  remove  the  same,  unless 
the  terms  of  limitation  attending  the  right  by  which  the  ward  owns 
the  same,  conflict  with  such  removal.2 

33.  Guardian  and  others  interested  may  get  direction  of  court. — Any 
executor,  administrator,  guardian,  or  other  trustee,  may  maintain  a 
civil  action  in  the  court  of  common  pleas  against  the  creditors, 
legatees,  distributees,  or  other  parties,  asking  the  direction  or  judg- 
ment of  the  court  in  any  matter  respecting  the  trust,  estate,  or 
property  to  be  administered,  and  the  rights  of  the  parties  in  inter- 
est, in  the  same  manner,  and  as  fully  as  was  formerly  entertained 
in  courts  of  chancery;  and  in  case  any  executor,  administrator, 
guardian,  or  other  trustee,  after  being  requested  in  writing  by  any 
creditor,  legatee,  distributee,  or  other  party  in  interest  to  bring 
such  action,  fail  for  thirty  days  so  to  do,  the  creditor,  legatee,  dis. 

I I  6393,  as  am.  86  v.  209.  2  g  6279. 


chap.  5, 34-35.]    powers  of  guardians.  73 

tributee,  or  other  party  making  such  request,  may  himself  institute 
such  action.1 

34.  Other  statutory  powers  and  dirties  will  be  found  in  preceding 
and  succeeding  chapters,  especially  in  chapter  25. 

GENERAL    PRINCIPLES    AND    OBSERVATIONS. 

35.  As  to  duties,  etc.,  not  statutory. — The  statutes  by  no  means 
point  out  the  entire  duties  of  trustees,2  especially  of  those  treated 
of  in  chapters  21  and  '22  of  this  hook,  nor  the  manner  in  which 
these  duties  must  be  performed.  Numerous,  extensive,  and 
learned  treatises  have  been  written  upon  these  subjects,  taking 
for  the  basis  of  their  contents  the  immense  mass  of  decisions  of 
the  courts  of  the  various  states  of  the  United  States  and  of  Eng- 
land, as  well  as  the  common  law,  most  of  which  are  accepted  as 

1§6202. 

An  action  by  executors  against  devisees,  distributees,  and  heirs,  asking 
the  direction  and  judgment  of  the  court  touching  the  construction  of  the 
testator's  will,  and  the  duties  of  the  executors  thereunder,  and  although  pray- 
ing, among  other  things,  for  an  order  to  sell  lands,  in  pursuance  of  the  sup- 
posed intention  of  the  testator,  for  the  payment  of  legacies,  is  appealable 
from  the  common  pleas  to  the  district  court.  Townsend  v.  Townsend,  24 
Ohio  St.  1.     See  also  Steinberger  v.  Steinberger,  19  Ohio,  106. 

An  action  brought  for  the  mere  purpose  of  obtaining  the  opinion  of  the 
court  upon  the  construction  of  the  will,  can  not  be  maintained  in  cases 
where  no  trust  is  involved.     Collins  v.  Collins,  19  Ohio  St.  468. 

When  no  trust  is  involved,  and  no  advice  or  guidance  to  an  executor  or 
other  trustee  is  required,  parties  claiming  under  or  against  a  will  can  not 
maintain  an  action  for  the  mere  purpose  of  obtaining  the  court's  opinion  as 
to  its  meaning  or  legal  effect.     Corry  ».  Fleming,  29  Ohio  St.  147. 

A  trustee  who  is  also  executor,  there  being  two  claimants  to  a  fund,  may 
ask  the  direction  of  the  court.  First  Presbyterian  Society  v.  Same,  25  Ohio 
St.  128,  133. 

A  trustee  in  doubt  as  to  his  powers,  has  a  right  to  apply  to  a  court  of 
equity  to  define  them,  and  give  judicial  sanction  to  his  acts.  Wiswell  v. 
First  Congregational  Church,  14  Ohio  St.  31. 

2  Guardians  are  trustees.  Schouler's  Dom.  Rel.  437-9;  Redf.  on  Wills, 
440,  n.  15;  Bouv.  Law  Die.  61G;  Hill  on  Trusts,  49.  Other  writers  on  trusts 
show  that  they  consider  them  such,  as  a  matter  of  course,  without  expressly 
saying  so,  by  treating  of  their  duties,  etc.,  in  their  works  on  trusts  and 
trustees.  It  also  follows  that  they  are  from  the  fundamental  principles  of 
trusteeship  as  prescribed  by  all  authorities  and  as  defined  in  law  and  other 
dictionaries,  which  see. 


74  POWERS   OP    GUARDIANS.  [CHAP.  5,  36-39. 

binding  in  this  si  ate,  or  at  least  as  worthy  of  being  followed  by 
our  courts  having  special  jurisdiction  in  such  matters,  where  the 
statutes  make  no  special  provisions; 

30.  Though  not  infrequent  references  are  made  throughout 
this  volume  to  many  of  these  treatises  and  decisions,  it  ma}'  be 
well  here  to  attempt  a  summary  of  some  other  well-defined  and 
generally  accepted  principles  governing  guardians  and  trustees. 

37.  The  reader  should  also  bear  in  mind  that  in  relation  to 
some  trustees,  and  especially  executors  and  administrators,  the 
statutory  provisions  are  quite  minute  in  many  particulars. 
Though  these  provisions  do  not  apply  in  express  terms  to  guar- 
dians and  trustees,  yet  if  the  statutes  are  silent  on  any  given 
point  of  practice  as  to  guardians  or  other  trustees,  they  would 
most  probably  be  looked  to,  whenever,  in  the  nature  of  things, 
they  would  be  as  fitting  in  the  one  case  as  the  other.  The  coui't, 
being  without  guide  in  the  one  case  and  being  compelled  to 
adopt  some  course  or  plan,  would  most  likely,  and  very  properly, 
adopt  the  plan  pointed  out  in  the  other  case,  so  far  as  applica- 
ble. 

38.  Guardian  subject  to  these  -principles. — In  the  management 
of  his  ward's  estate,  a  guardian  is  bound  by  the  principles  which 
regulate  the  general  conduct  of  all  trustees.1 

39.  As  to  deposits  of  money  in  bank.  If  a  guardian  deposits 
money  in  his  own  name  in  a  bank,  and  the  money  is  lost  by  the 
bank's  failure,  or  otherwise,  he  will  be  personally  responsible  for 
such  money.  But  if  he,  as  guardian,  deposits  it  in  a  bank  in 
good  credit  and  repute,  till  the  proper  time  for  paying  it  to  cred- 
itors, for  use  in  paying  the  current  expenses  of  supporting  and 
educating  the  ward,  or  till  it  can  be  judiciously  invested,  etc., 
and  the  bank  fails,  he  will  not  be  responsible.  He  must  act  in 
regard  to  this  as  a  prudent  man  would  in  his  own  affairs,  and 
must  keep  the  account  of  such  funds  separate  from  the  account 
of  his   own.2      His    bank    book   and   bank   account   for   such 

^chouler's  Dora.  Rel.  461. 

2  Although  the  following  authorities  do  not  all  mention  guardians,  the  gen- 
eral principles  are  those  which  govern  them  in  such  circumstances,  as  well 
as  executors  and  other  trustees. 

In  Shaw  v.  Bauman,  34  0.  S.  25  (in  which  a  justice  of  the  peace  was  held 


CHAP.  5,  40.]  POWERS   OF    GUARDIANS.  75 

funds  should  show  that  the  account  is  with  "A.  B.,  as  guardian 
of  CD." 

40.  Rule  as  to  proper  care  and  diligence.  No  doubt  the  rule  i9 
that  where  trustees,  including  guardians,  act  within  the  scope 
of  their  authority,  in  good  faith  and  according  to  the  best  of 
their  judgment,  and  exercise  such  prudence,  care  and  diligence 
as  men  of  ordinary  prudence,  cure  and  diligence  manifest  in 
like  matters  of  their  own,  they  will  not  be  held  accountable  for 

liable  for  money  officially  collected  by  him,  and  deposited  in  his  own  name 
in  a  bank  which  failed),  the  court  used  this  language  (p.  32) :  "  The  rule  in 
equity  is  well  settled,  .  .  .  that  if  a  trustee  deposits  the  funds  of  a  trust 
estate  in  bank,  in  his  own  name,  individually,  with  his  own  private  funds,  he 
thereby  becomes  debtor  to  the  trust  estate,  and  a  creditor  of  the  bank  :  ami 
in  case  the  trust  funds  are  lost  through  the  insolvency  of  the  bank, 
trustee  becomes  individually  liable  for  the  loss.  (Citing  Wren  v.  Kirton,  11 
Ves.  377:  Macdonnell  v.  Harding,  8  Eng.  Ch.  177;  Re  Stafford,  11  Barbour, 
353;  Brown  v.  Recketts,  4  John.  Ch.  303;  Ins.  Co.  v.  Lynch,  11  Paitie,  520; 
Phillips  v.  Lamar,  27  Geo.  227.)  See  also  McLain  v.  McGregor,  1  C.  S.  C. 
R.  327;  {or,  W.  &  B.  Digest,  "Trusts,"  55.) 

A  trustee  may  deposit  money  temporarily  in  some  responsible  banking- 
house;  but  he  will  be  liable  for  the  money  in  case  of  a  failure  of  the  bank, 
or  for  its  depreciation,  if  he  deposits  it  to  his  own  credit,  and  not  to  the  sep- 
arate account  of  the  trust  estate.  .  .  .  It  is  the  duty  of  the  trustee  to 
withdraw  the  money  from  the  bank  upon  the  slightest  indication  of  danger 
or  loss.  .  .  .  He  will  be  liable  if  he  keeps  money  in  bank  an  unreason- 
able length  of  time.  .  .  .  1  Perry  on  Trusts,  g§ 443-7,  914;  (citing  nu- 
merous English  and  American  authorities,  especially  to  the  first  sentence  of 
this  paragraph.)     See  also  Schouler's  Dom.  Rel.  474. 

In  all  cases,  however,  in  which  a  trustee  places  money  in  the  hands  of  a 
banker,  he  should  take  care  to  keep  it  separate,  and  not  mix  it  with  his  own 
in  a  common  account;  for,  if  he  should  so  mix  it,  he  would  be  deemed  to 
have  treated  the  whole  as  his  own,  and  he  would  be  held  liable  to  the  ceslni 
que  trust  for  any  loss  sustained  by  the  banker's  insolvency.  2  Story  on 
Equity  Jurisprudence,  §1270.  Also,  Hill  on  Trustees,  375,376;  Perry  on 
Trusts,  §444,  463;  Schouler's  Dom.  Rel.  474;  3  Redf.  on  Wills,  539. 

But,  with  respect  to  losses  sustained  by  the  failure  of  bankers,  or  other 
persons  into  whose  hands  the  money  of  the  testator  has  been  deposited  by 
the  executor,  the  rule,  at  least  in  equity,  seems  to  be  that  where  the  deposit 
was  made  from  necessity,  or  conformably  to  the  common  usage  of  mankind, 
the  executor  will  not  be  responsible  for  the  loss.  2  Willliams  on  Executors 
1545,  1546;  3  Redf.  on  Wills,  529. 

An  executor  will  not  be  liable  for  money  allowed  to  remain  with  bankers 
who  fail,  where  it  is  not  an  unreasonable  sum  for  the  executor  to  keep  in 


76  POWERS   OF   GUARDIANS.  [CHAP.  5,  41-43. 

losses  happening  from  their  management  of  the  trust  funds.1 
But  this  rule  will  only  protect  the  guardian  as  long  as  he  man- 
ages the  trust  fund  strictly  as  the  law  requires  him  to  do.2 

41.  It  has  also  been  held  that  the  maxim  that  every  person  is 
presumed  to  know  the  law,  is  not  always  applicable  to  trustees  ; 
on  the  contrary,  they  may  be  exonerated  from  losses  resulting  from 
their  ignorance  of  the  law,  in  cases  where  they  exercise  proper 
diligence  and  precaution,  and  act  upon  the  advice  of  counsel.'' 

4l\  Guardian  responsible  for  criminal  acts  of  his  agents. 
Though  a  trustee  is  not  responsible  for  the  crimes  of  stran- 
gers, he  is  responsible  for  the  criminal  acts  of  agents  em- 
ployed by  himself  about  the  trust  funds.4 

43.  Must  pay  right  person.  Guardians,  and  others  having 
trust  money  to  distribute,  must  see  that  it  reaches  the  person 

bank,  or  where  it  was  only  reasonable  for  the  monej-  to  be  deposited  there 
under  the  circumstances.     Smith  on  Equity,  paragraph  355. 

"  .  .  If  a  guardian  deposits  his  ward's  money  in  his  own  name,  and 
it  is  lost,  he  is  accountable  for  it.     Tyler  on  Inf.  and  Cov.,  2  175. 

1  Miller  v.  Proctor,  20  0.  S.  442;  States.  Guilford,  18  0.  500;  Perry  on 
Trusts,  £2441,  914;  Tyler  on  Inf.  and  Cov.,  2  175;  Schouler's  Dom.  Rel.  468, 
469,  479 ;  3  Redf.  on  Wills,  535,  563,  453,  n.  6  ;  Morley  v.  Morley,  2  Ch. 
Ca.  2;  Jones  v.  Lewis,  2  Ves.  241 ;  Massey  v.  Banner,  1  J.  &  W.,  247  ;  Att'y. 
Gen.  v.  Dixon,  13  Ves.  534;  Exp.  Belchier,  Arab.  220;  Exp.  Griffin,  2  Gi.  & 
J.  114;  Taylor  v.  Benham,  5  How.  233;  King  v.  Talbot,  50  Barb.  453;  40 
N.  Y.  86;  Neff's  App.,  57  Penn.  St.  91;  King  v.  King,  37  Ga.  205;  Camp- 
bell v.  Campbell,  38  Ga.  304:  White  v.  Parker,  8  Barb.  48,  53;  Glover  v. 
Glover,  1  McMullin  (S.  C),  153;  DePeyster  v.  Clarkson,  2  Wend.  77,  106; 
Smith  v.  Smith,  Marsh.  (Ky.)  238;  Lovell  v.  Minot,  20  Pick.  116;  Ashley 
v.  Martin,  50  Ala.  537;  Longmire  v.  Herndon,  72  X.  C.  629;  State  v.  Mor- 
rison, 68  N.  C.  162;  Love  v.  Logan.  69  N.  C.  70;  Atkinson  v.  Whitehead, 
66  N.  C.  296;  Genet  v.  Tallmadge,  1  Johns.  Ch.  (N.  Y.)  3;  In  re  Spencer's 
Appeal  (Logan  Co.  O.,  C.  P.)  3  W.  L.  M.  408;  Lay  v.  O'Neil,  29  La. 
Ann.  722.     See  also  last  three  pars,  of  note  1,  p.  67. 

In  3  Redf.  on  Wills,  541,  it  is  stated  that  trust  funds  must  be  kept  and  in- 
vested not  only  with  that  care,  skill  and  watchfulness  which  the  trustee 
would  exercise  in  regard  to  his  own  funds  of  like  character  and  amount,  but 
with  that  which  the  most  vigilant  exercise  about  such  matters  (citing,  at  end 
of  a  long  paragraph,  1  Lewin,  241  et  seq.,  and  cases  there  cited).  But  the 
rule  in  Ohio  is  as  stated  above.     See  Ohio  cases  referred  to  in  this  note. 

2  See  paragraphs  12,  37. 

3 Miller  v.  Proctor,  20  O.  S.,  442;  see  also  3  Redf.  on  Wills,  565. 

*  Perry  on  Trusts,  2441;  Schouler's  Dom.  Rel.  471;  3  Redf.  on  Wills,  542. 


CHAP.  5,  44.]  POWERS    OF    GUARDIANS.  77 

entitled  to  receive  it,  for  if  paid  to  the  wrong  person,  by  mis- 
take or  otherwise,  they  are  still  liable  to  pay  it  to  '.he  rightful 
claimant.1 

44.  Guardian  can  in  no  way  derive  profit  from  ward's  property. 
— It  is  a  well  settled  rule  in  equity,  that  a  trustee  is  not  permit- 
ted to  so  manage  the  subject  of  his  trust  as  to  make  profits  or 
gain  therefrom,  either  directly  or  indirectly,  for  himself.  The 
beneficiaries  in  the  trust  have  a  right  to  expect  and  require  the 
exercise  of  his  best  judgment,  care  and  diligence  on  their  be- 
half, and  the  gains  resulting  therefrom  inure  to  their  sole  benefit. 
Among  other  things,  this  would  effectually  prevent  a  trustee 
from  buying  up  a  debt  or  incumbrance  to  which  the  trust  estate 
is  liable  for  less  than  the  amount  due  thereon,  and  appropriate 
the  difference  as  a  profit  to  himself.2 

1  Perry  on  Trusts,  §926;  3  Redf.  on  Wills,  538.  But  not  for  interest 
thereon,  lb.  445-6. 

2  Cox  v.  John,  32  O.  S.  532;  Perry  on  Trusts,  §2427-432,  464,  G21  ; 
Schouler's  Dom.  Rel.  468-9,  478,  510,  511 ;  3  Redf.  on  Wills,  533-5 ;  2  Kent's 
Com.  229;  4  do.  371,  note  c;  Tyler  on  Inf.  and  Cov.,  H75. 

Among  recent  cases,  not  cited  in  above  works,  see  Bt  rkmeyer  v.  Keller- 
man,  32  O.  S.  239;  Lowry  v.  State,  64  Irid.  421;  Chanslor  v.  Chanslor, 
11  Bush  (Ky.),  60S;  Wood  v.  Safford,  50  Miss.  370;  State  v.  Peebles,  70 
N.  C.  10. 

What  such  trustee  may  not  do  directly,  he  is  not  permitted  to  do  through 
the  intervention  of  an  agent  or  attorney.     Cox  v.  John,  32  O.  S.  532. 

An  administrator  [and  this  applies  with  equal  force  to  guardians. — Ed.'] 
can  not,  therefore,  be  allowed,  directly,  or  through  his  attorney,  to  com- 
promise, adjust,  and  settle  claims  against  the  estate  for  which  he  is  acting, 
for  less  than  their  face,  and  to  put  the  difference  in  his  own  pocket.     lb. 

And  the  rule  is  the  same,  whether  the  attorney,  through  whom  such  com- 
promise and  settlement  is  effected,  acts  for  the  administrator  officially  or 
personally;  and  whether  he  acts,  in  making  such  settlement,  as  the  attorney 
of  the  administrator,  solely,  or  for  him  and  others,  with  a  view  to  their  joint 
profit.  What  the  administrator  may  not  do  singly,  the  policy  of  the  law  will 
not  permit  him  to  participate  in  doing.  In  either  case  the  discounts  ob- 
tained from  creditors  must  inure  to  the  benefit  of  the  estate,     lb. 

It  is  the  peculiar  province  of  equity  to  take  cognizance  of  transactions 
growing  out  of  relations  of  trust,  and  to  prevent  those  holding  such  posi- 
tion? from  using  them  and  their  influence  for  their  own  aggrandizement. 
Berkmeyer  v.  Kellerman,  32  O.  S.  239. 

All  the  power,  influence,  and  skill  of  one  occupying  such  a  relation  is  to 
be  used  for  the  advantage  of  the  beneficial  owner  and  not  for  personal  gain; 


78  POWERS    OF    GUARDIANS.  [CHAP.  5,  45-46. 

45.  Guardians  can  not  speculate  with,  nor  use  ward's  money  in 
business. — Trustees  can  not  use  any  part  of  the  trust  fund. in 
their  own  speculations  or  business.  Should  they  nevertheless  do 
ill  profits  whatsoever  derived  from  such  use  must  be  accounted 
for  as  the  property  of  the  beneficiaries  ;  and  should  any  loss  re- 
sult from  such  use  of  the  funds,  it  must  be  borne  entirely  by  the 
trustee.1 

4G.  In  ease  of  sueli  use  by  a  guardian,  the  wards  may.  on  ar- 
riving of  age.  elect  to  take  either  (1),  all  the  profits  made  in  such 

and  all  increase,  gains  or  profits,  whether  arising  from  the  natural  increase 
in  value  of  the  property  or  from  the  management  of  the  trustee,  are  the  ab- 
solute property  of  the  beneficiary.     lb. 

One  standing  in  the  relation  of  a  parent  and  guardian,  in  fact,  of  a  minor, 
having  the  custody  and  control  of  such  minor  and  of  his  property  during  his 
minority,  is  bound  to  the  most  scrupulous  good  faith  in  the  management  of 
the  estate,     lb. 

If  a  guardian  convert  land-scrip,  receivable  at  the  land-office  in  the  pur- 
chase of  public  lands,  into  money,  by  investing  it  in  land  for  himself  and 
others,  and  accounting  with  bis  wards  for  the  scrip,  with  interest  from  the 
time  of  its  investment,  he  can  not,  if  he  acted  in  good  faith  in  the  trans- 
action, be  charged  as  a  trustee  of  the  land  purchased,  or  compelled  to  ac- 
count for  the  profits  growing  out  of  the  investment.  1846.  Davies  v.  Lowrey, 
15  0.  G55. 

1  See  Schouler's  Dora.  Rel.,  §427-432. 

Trustees  can  not  make  a  profit  from  trust  funds  by  using  them  in  any 
kind  of  trade  or  speculation,  nor  in  their  own  business;  nor  can  they  put 
the  funds  into  the  trade  or  business  of  another,  and  receive  a  bonus  or  other 
profit  or  advantage.  In  all  such  cases,  the  trustees  must,  account  for  every 
dollar  received  from  the  use  of  the  trust  money,  and  they  will  be  absolutely 
responsible  for  it  if  it  is  lost  in  any  such  transactions.  By  this  rule,  trus- 
tees may  be  liable  to  very  great  losses,  while  they  can  receive  no  profit; 
and  the  rule  is  made  thus  stringent,  that  trustees  may  not  be  tempted  from 
selfish  motives  to  embark  the  trust  fund  upon  the  chances  of  trade  and 
speculation.     Perry  on  Trusts,  §429. 

If  a  trustee  stands  by  and  sees  his  co-trustee  employ  funds  in  that  man- 
ner, he  will  be  equally  liable;  and  the  same  rule  applies  if  the  trustees 
simply  continue  the  trade  or  business  of  the  testator.  It  is  their  duty  to 
close  up  the  trade,  withdraw  the  fund,  and  invest  it  in  proper  securities  at 
the  earliest  convenient  moment;  and  this  is  so,  although  the  trustees  may 
have  been  the  business  agents  or  partners  of  the  testators.  It  the  person 
from  whom  the  trust  fund  comes  authorize  his  trustees  to  continue  the  fund 
in  a  trading  firm,  it  will  be  a  breach  of  trust  to  allow  the  fund  to  remain 
after  a  change  in  the  firm,  as  by  the  death  or  withdrawal  of  one  of  the  part- 


CHAP.  5,  47-48]  POWERS    OP    GUARDIANS.  79 

way;  or  (2)  interest  compounded  annually  on  all  funds  so  era- 
ployed  during  the  time  of  such  wrongful  use  ;  and  of  course,  in 
case  of  loss,  could  recover  the  funds  so  lost,  with  interest.  l»y  suit 
if  necessary,  on  the  guardian's  bond.1 

47.  Guardian  should  generally  use.  only  the  Income. — No  part  of 
the  eapital  of  the  infant  should  ever  be  used  for  its  maintenance  ' 
without  first  obtaining  an  order  of  eburt  permitting  -this  to  be 
done  It  is  probable  that  in  case  the  capital  is  small  and  the 
ward  can  not  be  maintained  on  the  income,  and  the  guardian  so 
uses  a  part  or  all  of  the  capital,  the  courl  would,  upon  satis- 
factory proof  that  it  was  necessary  to  do  so.  ratify  such  action. 
But  there  are  cases  where  it  has  refused,  and  the  burden  would 
always  be  on  the  guardian  to  show  this  necessity.  The  proper 
and  safe  plan  would  be  to  get  an  order  of  the  court  in  every 
sueh  ease,  before  infringing  on  the  capital  at  all.3 

48.  Capital  used  for  education. — Courts  are  much  more  willing 

ners.  If  the  trustees  arc  directed  to  continue  the  testator's  trade,  they  can 
invest  none  of  his  general  assets  in  the  business.  They  are  con6ned  to  the 
fund  already  embarked  in  the  trade.  //>.,  \  154,  456,  459:  2  Kent's  Corn.  230; 
Corcoran  v.  Allen  (1877),  11  R.  I.  567. 

See  also  references  in  note  2,  page  77. 

xSee  par.  12,  this  chapter.  Perry  on  Trusts,  §?462,  404,  621;  Schooler's 
Dom.  Rel.  470,  478,  510-511 ;    3  Redf.  on  Wills,  535. 

See  also  note  2,  page  77 ;  as  to  suit  on  bond,  see  chap.  10. 

2  Cohen  v.  Shyer,  1  Tenn.  Ch.  192  ;  Johnston  v.  Haines,  68  N.  C.  514.  (See 
U.  S.  Dig.  G.  262,  275.) 

If  a  guardian  has  not  infringed  upon  the  capital,  he  can  not  be  held  re- 
sponsible for  the  profits  nor  interest  of  the  estate,  though  he  may  have  spent 
for  his  ward  more  than  the  interest  of  a  given  year  that  year,  or  less  another 
year,  if,  during  the  entire  guardianship,  he  has  not  expended  more  than  the 
entire  interest,  and  has  disbursed  it  reasonably  and  suitably  to  the  circum- 
stances of  his  wards,  and  legally  in  other  respects.  Speer  v.  Tinsley,  55 
Ga.  89. 

3  Perry  on  Trusts,  §618-19;  Tyler  on  Inf.  and  Cov.,  ?H6;  Schouler's 
Dom.  Rel.  457  ;  Story's  Eq.,  \  1355. 

"  The  order  in  which  the  ward's  property  should  be  expended  for  his  sup- 
port and  education  is  as  follows:  First,  the  income  of  the  property;  next, 
if  that  proves  insufficient,  the  principal  of  personal  property ;  lastly,  if  both 
are  inadequate,  the  ward's  real  estate,  or  so  much  of  it  as  may  be  neces- 
sary."    Schouler's  Dom.  Rel.  457-8- 

It  is  competent  for  the  probate  court  to  fix  the  amount  to  be  expended  in 


80  POWERS    OF    GUARDIANS.  [CHAP.  5,  49. 

to  permit  the  use  of  ward's  capital  to  properly  educate  him  for 
business  or  life  than  for  mere  maintenance,  as  it  is  then  consid- 
ered to  be  nol  expended  so  much  as  converted  into  a  different 
and  useful  form.1 

49.  Purchase  of  ward's  property  by  guardian,  at  his  sale. — It 
is  a  well  settled  principle,  applied  with  greal  strictness  in  this 
state,2  that  a  trustee  can  not.  cither  directly  or  indirectly,  pur- 
chase the  property  lie  holds  in  trust.3  Of  course,  this  would 
prevent  a  guardian  from   purchasing  land  of  his  ward  at  sales 

the  maintenance  and  education  of  the  ward,  and  to  say  how  far  the  principal 
of  ihe  funds  belonging  to  the  ward  shall  be  encroached  upon.  Wiggle  v. 
Owen,  45  Miss.  691. 

The  pension  of  wards  from  the  U.  S.  on  account  of  their  dead  father's 
military  services  may  he  used  for  their  support,  but  to  justify  an  allowance 
therefrom  to  their  surviving  mother  for  their  past  support  would  require  a 
stronger  showing  than  for  a  future  allowance,  and  should  only  be  made 
under  special  circumstances.     Welch  v.  Burris,  29  Iowa,  186. 

1  Perry  on  Trusts.  \  51S.  .  , 

See  "sixth,"  page  64. 

2 "  This  principle  .  .  .  has  been  pushed  to  a  vigorous  extent  in  our  own 
courts."— Chief  Justice  Lane,  in  Dunlap  v.  Mitchell,  10  0.  117,  120. 

3  Welsh  i\  Perkins,  8  0.  52,  55; v. ,  6  Dana.  171 ;   Armstrong  ». 

Huston,  8  O.  552,  554;  Dunlap  v.  Mitchell,  10  O.  117,  120;  Glass  v.  Great- 
house,  20  O.  503;  Sheldon  v.  Newton,  3  O.  S.  4it4;  Barrington  v.  Alexander, 
6  O.  S.  189;  Pdddle  v.  Roll,  24  0.  S.  572;  Piatt  v.  Longworth,  27  0.  S.  159; 
Rammelsberg  v.  Mitchell,  29  0.  S.  22;  Beard  v.  Westerman,  32  O.  S.  29. 
See  also  Perry  on  Trusts,  g§  602  v,  602  w,  194-210,  787;  3  Redf.  on  Wills, 
534;  537,  551;  2  Kent's  Com.  229;  4  Kent's  Com.  433,  n.  (c);  Tyler  on 
Inf.  and  Gov.,  §  175. 

Courts  of  equity  will  presume  without  proof  that  such  contracts  are  fraudu- 
lent, and  declare  them  void,  or  at  least  will  throw  upon,  the  purchaser  in 
such  cases  the  entire  burden  of  proving  the  entire  fairness  of  the  trans- 
action, and  that  it  was  advantageous  to  the  ward.  Perry  on  Trusts,  §#  194, 
195,  and  the  many  cases  there  cited.  See  also  Jacox  v.  Jacox,  40  Mich.  473; 
Morrison  v.  Kinstra,  55  Miss.  71. 

Such  a  sale,  having  proven  very  advantageous  to  the  ward  and  injurious  to 
the  guardian,  was  sustained.     Redd  v.  Jones,  30  Gratt.  (Va.)  123. 

A  guardian  having  bought  his  ward's  land  and  paid  for  it,  restitution  will 
not  be  required  when  the  infant,  having  come  of  age,  seeks  a  disaffirmance 
of  the  contract.     Green  v.  Jones,  14  N.  Y.  S.  C.  492;   (1876.) 

Such  purchase  held  good,  on  full  payment  of  purchase  money,  the  sale 
being  fair  and  price  good.  Small  v.  Small,  74  N.  C.  16;  Blackmore  v. 
Shelly,  8  Humph.   (Tenn.)  439;  Elrod  v.  Lancaster,  2  Head,  (Tenn.J  571. 


CHAP.  5,  5 0-51. J  POWERS    OP    GUARDIANS.  S\ 

treated  of  in  chapter  6;  and  should  he,  nevertheless,  attempt 
so  to  buy,  the  beneficiary  can  have  the  sale  set  aside.1 

50.  Such  sale  would  be  good,  if  ratified  by  the  wards  after 
they  became  of  age.2 

51.  Guardian's  purchase  with  ward's  money. — If  a  guardian  of 
a  minor  purchases  property  with  the  ward's  funds  and  takes  the 
title  in  himself,  a  trust  will  result  to  the  ward,3  who  may  take 
the  land  at  what  it  cost,  or  the  money,  with  interest,  when  he 
becomes  of  age.* 

Also  when  bought  to  save  property  from  sacrifice,  at  auction.  But  trustee 
held  to  account  for  profits  made  in  reselling.     3  Redf.  on  Wills,  555-6. 

"  Where  a  gurdian  purchases  for  himself  at  sales  of  his  ward's  property, 
his  conduct  will  be  closely  scrutinized.  But  where  no  fraud  appears,  and 
the  sale  appears  beneficial  to  the  ward,  the  more  reasonable  doctrine  is  that 
the  transaction  is  sustainable  in  equity,  subject  to  the  ward's  subsequent 
election,  on  reaching  majority,  to  disaffirm  the  sale.  The  guardian  mean- 
while takes  the  legal  title;  more  especially  if  the  sale  was  conducted  through 
a  third  party,  who  afterward  conveyed  to  him."  Schouler's  Dora.  Rel.  469; 
also  511. 

To  similar  effect,  3  Redf.  on  Wills,  537,  n.  21,  555;  Doe  v.  Hassell,  68  N. 
C.  213;  Lee  v.  Howell,  69  N.  C.  200. 

It  is  believed  that  the  only  way  such  sales  could  be  rendered  safe  for  the 
purchaser  at  all  in  Ohio,  would  be  by  their  ratification  by  the  ward  some 
time  after  his  becoming  of  age.  —  Ed. 

1  Perry  on  Trusts,  #602w;  Schouler's  Dom.  Rel.  469;  Beam  v.  Frone- 
berger,  75  N.  C.  540.     See  also  par.  180,  chap.  6;  notes  on  pp.  126,  163-5. 

For  general  principles  concerning  this  point,  see  Ohio  case  cited  in  note 
3,  p.  80.  See  also  Devoue  v.  Fanning,  2  Johns.  (N.  Y.)  Ch.  252;  Michoudw. 
Girod,  4  How.  (U.  S.  Sup.  Ci.)  503;  both  leading  and  exhaustively  con* 
sidered  cases. 

zDunlap  v.  Mitchell,  10  O.  117. 

3  Perry  on  Trusts,  §  127;  Tyler  on  Inf.  and  Cov.,  §  175;  3  R<-df.  on  Wills, 
557;  4  Kent's  Com.  371,  n.  (c);  Freeman  v.  Kelly,  1  Hofl.  90;  Harris- 
burg  Bank  v.  Tyler,  3  Watts  &  S.  373;  Martin  v.  Greer,  1  Geo.  Dec.  109, 
Moffit  v.  McDonald,  11  Humph.  457;  Kirkpatrick  v.  McDonald,  11  Penn. 
St.  387  ;  Wilhelm  v.  Folmer,  6  Penn.  St.  296;  Day  v.  Roth,  18  N.  Y.  488; 
Lathrop  v.  Gilbert,  2  Stoct.  344 ;  McLarren  v.  Brewer,  51  Me.  402 ;  Thomp- 
son's App.  22  Penn.  St.  16;  Pugh  v.  Pugh,  9  Ind.  132;  Valle  v.  Bryan,  19 
Mo.  423;  Neil  v.  Keese,  13  Tex.  187;  Hancock  v.  Titus,  33  Miss.  224; 
White  v.  Parker,  8  Barb.  48;  Vason  v.  Bell,  53  Ga.  416;  Chanslor  v.  Chans- 
lor,  11  Bush,  663;  Sterling  o.  Arnold,  54  Ga.  690;  Kepler  v.  Davis,  80 
Penn.  St.  153  .  .  (applying  rule) ;  Armitage  v.  Snowden,  41  Md.  119;  Mor- 
gan v.  Johnson,  68  111.  190. 

4  Edmonds  v.  Morrison,  5  I >;in;u  224;    Alexander  d.  do.,  46  Ga.  283. 


82  POWERS    OP    GUARDIANS.  [CHAP.  5,  52-54. 

52.  There  can  be  no  doubt  but  thai  the  guardian  could  also 
be  sued  on  his  bond  for  the  amount  so  appropriated  to  his  own 
use.1 

53.  Contracts  between  guardian  and  ward. — The  relation  be- 
tween guardian  and  ward  is  one  of  great  influence  over  the 
ward,  and  while  it  exists,  no  contracts  between  them  can  be 
made.2  But  if  a  contract  or  conveyance  is  made  by  the  ward 
to  the  guardian  just  after  attaining  his  property,  and  before  a 
full  settlement  is  made,  and  while  the  influence  of  the  guardian 
is  still  in  full  force,  courts  will  examine  it  in  all  its  aspects;  and 
the  guardian  claiming  under  such  a  conveyance  must  satisfy  the 
court  that  the  transaction  was  fair  and  proper,  and  that  it  did 
not  proceed  from  undue  influence,  or  from  tear,  hope,  or  other 
unworthy  motive  induced  in  the  mind  of  the  ward  by  the  con- 
duct of  the  guardian.3 

54.  Gift  from  ward  to  guardian. — Much  the  same  principles 
apply  to  gifts  from  wards  to  their  late  guardians.  It  has  been 
said  that,  although  a  gift  from  a  ward  ma)-  be  a  highly  moral 
act,  and  alike  creditable  and  honorable  to   him,  yet,  if  the  court 

1  Arinitage  v.  Snowden,  41  Md.  119. 

2  Perry  on  Trusts,  §  200;  Schouler's  Dom.  Rel.  512;  Dawson  v.  Massey,  1 
B.  &  B.  226;  Blackmore  v.  Shelly,  8  Humph.  439;  Bostwick  p.  Atkins,  3 
Comst.  53;  Gallatian  v.  Cunningham,  8  Cow.  361;  Clarke  v.  Devereaux,  1 
S.  C.  172. 

If  a  party  having  an  infant  under  his  influence  and  control,  against  whom 
he  is  prosecuting  a  suit  in  which  no  defense  is  made  for  the  infant,  intends 
to  insist  on  the  rights  of  an  ordinary  adversary,  he  ought  first  to  surrender 
the  advantages  arising  from  his  fiduciary  or  quasi-fiduciary  character.  1867. 
Long  v.  Mulford,  17  0.  S.  484. 

The  jurisdiction  which  courts  of  equity  employ  to  protect  infants  is  not 
confined  to  cases  of  a  strictly  fiduciary  character.  The  principle  on  which 
relief  is  given  applies  to  all  cases  where  influence  is  acquired  and  abused, 
and  confidence  reposed  and  betrayed.  In  cases  of  a  fiduciary  character, 
influence  is  presumed;  in  others,  its  existence  must  be  proved.     lb. 

3Perry  on  Trusts,  §  200;  3  Redf.  on  Wills,  443;  Tyler  on  Inf.  and  Cov. 
§178;  Schouler's  Dom.  Rel.  512-14.  See  note  1  on  page  163.  Riebardson 
v.  Linney,  7  B.  Mon.  (Ky.)  571;  Andrews  v.  Jones,  10  Ala.  400;  Eherta 
v.  Eberts,  54  Penn.  St.  110;  Dawson  v.  Massey,  1  B.  &  B.  229;  Wright  v. 
Proud,  13  Ves.  136;  Wedderburn  v.  Wedderburn,  4  M.  &  C.  41 ;  Ay  I  ward 
v.  Kearney,  2  B.  &  B.  463;  Mulhallen  v.  Murum,  3  Dr.  &  W.  317;  Gary  v. 
Mansfield,  1  Ves.  379;  Garvin  v.  Williams,  44  Mo.  465;  11  Am.  Law  Reg. 
(N.  S.)  656. 


CHAP.  5,  55-56.]  POWERS    OF    GUARDIANS.  83 

is  not  entirely  satisfied  by  clear  demonstration  that  the  gift  was 
properly  made,  it  will  be  set  aside.  Nothing  can  be  allowed  to 
stand  that  proceeds  from  the  pressure  of  the  relation  of  guar- 
dian and  ward  fresh  upon  the  mind  of  the  ward.1 

55.  The  statement  that  a  gift  from  a  ward  to  his  late  guardian 
is  creditable  and  honorable,  etc.,  is  much  more  applicable  to 
England,  where  the  law  does  not  provide  for  any  compensation 
to  the  guardian,  than  it  is  to  this  state  and  to  the  United  States 
generally,  where  the  guardian  is  allowed  reasonable  pay  for  his 
time,  trouble,  and  services.  But  this  is  an  additional  reason  why 
such  gifts  here  should  be  closely  scrutinized  by  our  courts. 

56.  The  ward,  may  recover  property  wrongfully  conveyed  by  guar- 
dian.— If  a  trustee  wrongfully  conveys  any  of  the  trust  property, 
real  or  personal,  to  a  purchaser  with  notice2  of  the  trust  char- 
acter of  such  property,  the  beneficiary  may  pursue  and  recover 

1  Perry  on  Trusts,  §  200  ;  Tyler  on  Inf.  and  Gov.,  §  178;  Schouler's  Dom. 
Rel.  513-15;  Hatch  v.  do.,  9  Ves.  297;  Hyltou  v.  do.,  2  Ves.  548;  Pierce  v. 
Waring,  same,  and  1  Ves.  380,  and  1  P.  Wms.  120  n. ;  1  Cox,  125;  Wood  v. 
Dowries,  18  Ves.  126;  Johnson  v.  Johnson,  5  Ala.  90;  Williams  v.  Powell, 
1  lied.  (N.  C.)  460;  Gaplinger  v.  Stokes,  Meigs,  175;  Somes  v.  Skinner,*. 
16  Mass.  348;  Whitman's  App.,  28  Penn.  St.  348;  Hawkins  App.,  32  Penn. 
St.  263;  Scott  v.  Freeland,  7  Sm.  &  M.  420;  Garvin  v.  Williams,  44  Mo.  465. 

2  Where  a  guardian  has  the  legal  power  to  sell  or  dispose  of  the  personal 
estate  of  his  ward  in  any  manner  he  may  think  most  conducive  to  the  pur- 
poses of  his  trust,  a  purchaser  who  deals  fairly  has  a  right  to  presume  that 
he  acts  for  the  benefit  of  his  ward.  He  is  not  bound  to  inquire  into  the 
state  of  the  trust,  nor  is  he  responsible  for  the  faithful  application  of  the 
money,  unless  he  knew  or  had  sufficient  information  at  the  time  that  the 
guardian  contemplated  a  breach  of  trust,  and  intended  to  apply  the  money, 
or  was,  in  fact,  by  the  very  transaction  applying  it  to  his  own  private  pur- 
poses. Field  v.  Schieffelin,  7  Johns.  Ch.  150;  Conrad  v.  Griffey,  16  How. 
37,38;  Elliott  v.  Merryman&  Notes,  1  Lead.  Cas.  Eq.  74,  111).  See  also  Bank 
v.  Carpenter,  7  O.  1  pt.  21 ;  Giles  v.  Pratt,  1  Hill  (S.  C. )  239  ;  Mulford  v.  Stalz- 
enbach,  46  111.  303.     But  see  Strong  v.  Strauss,  in  note,  p.  138;  note,  p.  94. 

Among  the  duties  of  a  guardian  prescribed  by  statute  are  the  education 
of  the  ward  in  such  amount  as  the  estate  may  justify,  the  investment,  of  the 
money  of  the  ward,  and  generally  the  management  of  the  estate  lor  the 
best  interest  of  the  ward.  These  duties  involve  discretion.  While  it  may 
be  a  general  principle,  although  not  indeed  universally  true,  that  a  pur- 
chaser having  notice  of  a  trust  is  bound  to  see  to  the  proper  execution  of 
the  trust,  the  principle  does  not  prevail  where  the  purchase  money  is  to  be 
applied  by  the  trustee  himself  to  purposes  requiring  time,  deliberation,  or 
discretion  on  his  part.  Clyde  v.  Simpson,  4  O.  S.  445,  464;  Coonrod  v. 
Coonrod,  6  O.  115,  116;  Story's  Eq.  \  1134  (Redfield's  Ed.  \  977a.) 


84  POWERS    OF    GUARDIANS.  [CHAl-.    ").  57-58. 

the  property, or  he  may  hold  the  trustee  responsible  personally; 
and  if  the  trustee  purchases  land  in  bis  own  name  with  the  trust 
funds,  the  beneficiary  may  have  the  land,  or  hold  the  trustee 
responsible  for  the  trust  fund  so  expended,  with  interest.1 

f>7.  Ward's  labor  and  services. — The  guardian,  occupying,  as  he 
does,  to  a  considerable  extent,  the  place  of  a  parent,  may,  when 
circumstances  render  it  expedient,  compel  the  ward  to  contribute 
to  his  own  maintenance  by  such  labor  and  services  as  he  is  capa- 
ble of  rendering  without  detriment  to  Ids  health,  character,  and 
reasonable  education  ;  and  this  would  be  especially  true  of  a 
ward  whose  income  is  insufficient  for  his  support.  But  the  guar- 
dian can  not  receive  such  services  rendered  to  himself,  nor  their 
proceeds  when  rendered  to  others,  without  being  responsible  and 
liable  to  account  for  the  same,  just  as  he  must  for  other  property 
or  thing  of  value  belonging  to  his  ward,  and  he  can  set  off 
against  any  claims  for  board,  etc..  of  the  ward,  the  real  value  of 
the  services  rendered  by  the  ward  to  the  person  furnishing  such 
board,  care,2  etc. 

58.  Where  ward  resides  with  guardian. — But  when  the  ward 
resides  with   his  guardian  as  a  member  of  his  family,  the  courts 

1  Perry  on  Trusts,  2?  828-844;  Schouler's  Dom.  Rel.  470.  See  also  Branch 
v.  Du  Bose,  53  Ga.  514;  Shelton  v.  Lewis,  27  Ark.  190;  Younce  v.  McBride, 
68  N.  C.  532  ;  Lemley  v.  Atwood.  65  N.  C.  46. 

2  See  Schouler's  Dom.  Rel.  499;  Tyler  on  Inf.  and  Gov.  265:  Starling  v. 
Balkum,47  Ala.  314;  Lewis  v.  Edwards,  44  Ind.  333;  also,  note  2,  p.  64. 

If  a  guardian  of  a  minor  knows  that  the  minor  and  her  mother  have  agreed 
with  a  third  person  as  to  the  services  of  the  minor,  the  compensation  there- 
for, and  the  payment  therefor  to  the  minor,  and  permit  the  agreement  to  be 
executed,  and  the  amount  to  be  paid  to  the  minor,  without  objection,  he  is 
estopped  from  collecting  the  amount  as  guardian.  (27  Ind.  534;  31  Ind.  76; 
32  Ind.  309.)     Boulton  v.  Black,  Sup.  Ct.  Ind.  1880;  5  Cin'ti  Law  Bui.  129. 

A  minor  had  a  guardian  other  than  his  father,  and  such  guardian  con- 
tracted with  the  minor's  father  for  the  sale  of  the  minor's  time  during  the 
remainder  of  his  minority,  and  paid  the  father  for  the  time  according  to  the 
contract.  Held,  that  the  amount  could  not  be  allowed  to  the  guardian  on 
the  settlement  of  his  account  with  the  probate  court,  without  his  showing 
affirmatively  that  his  ward  was  at  least  no  worse  off  than  if  he  had  his 
mone}',  with  interest,  on  arriving  at  bis  majority.  Bannister  v.  do.,  44 
Vt.  624. 

Guardians  should  keep  their  wards  employed  when  able  to  earn  their  own 
support,  rather  than  permit  them  to  consume  in  idleness  the  principal  of 


CHAP.  5,  59.]  POWERS    OF    GUARDIANS.  85 

generally  consider  that  such  services  as  children  render  are  a 
fair  equivalent  for  their  board,  and  are  not  disposed  to  allow  the 
guardian  any  compensation  for  the  ward's  mere  maintenance, 
nor  the  ward  for  his  services.1  However,  the  court  should  con- 
sider the  circumstances  of  each  particular  case,  taking  into  ac- 
count the  age,  sex,  strength,  and  other  elements  affecting  the 
usefulness  of  the  services  of  the  ward,  the  amount  of  time  he 
may  have  been  compelled  to  work  when  he  ought  to  have  been 
at  school,  etc.,  and  do  substantial  justice  accordingly.  It  can 
readily  be  seen  a  strong  boy,  kept  at  work  on  a  farm  most  of  the 
time  between  the  years  of,  say  twelve  and  twenty,  is  not  on  an 
equal  footing  with  a  sickly  child  between  the  years  of  four  and 
eight,  capable  of  and  doing  little  or  no  work.  And  a  guardian 
who  would  permit  his  ward  to  be  improperly  deprived  of  suita- 
ble means  of  education,  taking  into  account  the  amount  of  his 
ward's  estate  and  other  circumstances,  is  not  fit  for  his  trust,  and 
ought  to  be  promptly  removed. - 

59.  Allowance  of  fixed  sum  for  word's  maintenance. — In  Eng- 
lish chancery  practice  it  is  the  general  rule  that  when  the  ap- 
pointment of  a  guardian  is  sought,  a  fixed  sum  for  the  support 
of  the  ward  is  asked  for  at  the  same  time.  Though  this  rule  is 
not  general  in  the  United  States,3  yet  it  is  not  uncommon, 
especially  when  the  minors  are  living  with  their  mother  and 
have  property  of  their  own,  for  the  care  of  which  a  guardian  of 

their  patrimony.  State,  v.  Clark,  16  Ind.  97 ;  Clark  v.  Clark,  8  Paige  (N. 
Y.)  152. 

Where  a  minor  is  living  with  A.,  under  his  control,  and  B.  hires  his  services 
from  A.  ;  in  an  action  by  A.  to  recover  for  such  services,  B.  is  estopped  by 
his  contract  from  denying  A.'s  right  to  control  his  services.  1833.  Lowry 
v.  Button,  W.  330. 

^chouler's  Dom.  Rel.  449,  500. 

When  a  guardian  takes  his  ward  into  his  own  family,  an  intention  to 
maintain  such  ward  gratuitously  may  be  inferred  from  circumstances.  Proof 
of  an  express  promise  is  not  necessary.  1869.  Crosby  v.  Crosby,  1  S. 
C.  337. 

2  Where  a  ward  has  been  properly  maintained  and  educated,  it  is  no 
ground  for  removal  of  the  guardian  that  he  has  merely  given  his  notes  for 
the  expenses,  there  being  no  complaint  by  the  creditor.  Sweet  v.  Sweet, 
Spears  (S.  C.)  Ch.  309.  See  note  3,  p.  64;  also,  note  1,  p.  53;  last  part  of 
note  2,  p.  90;  also  par.  17  et  seq.,  p.  52. 

3Schouler's  Dom.  Rel.  459,  461. 


,86  POWERS   OP    GUARDIANS.  [CHAP.  5,  60-62. 

the  estate  bus  been  appointed,  to  represent  to  tbe  court  tbe 
amount  of  income  or  property  the  wards  each  have,  and  to  ask 
the  court  to  fix  an  amount  per  annum  which  the  mother  may  be 
allowed  for  the  maintenance  and  education  of  each  ward.  This 
sum  may  be  changed  in  amount  from  time  to  time,  as  the  needs 
of  the  ward  or  the  change  in  value  of  the  ward's  property  may 
require.  This  is  the  most  convenient  and  desirable,  and  a  safe 
way  of  proceeding,  when  the  circumstances  arc;  such  as  to  justify 
its  adoption. 

60.  Costs  of  litigation,  etc. ;  who  must  pay.  —It  may  be  stated  as 
a  general  rule,  that  all  costs  and  expenses,  including  reasonable 
attorney  fees,  fairly  incurred  by  the  guardian  in  suits  lor  receiv- 
ing, properly  administering,  and  protecting  the  trust  fund,  must 
be  allowed  to  him  by  the  court;  and  he  should  also  be  allowed 
those  of  suits  decided  against  him,  if  he  was  honest  and  acting 
in  good  faith  in  such  suits,  and  they  were  such  as  a  reasonable 
and  prudent  man  might  reasonably  have  undertaken  or  resisted 
in  the  management  of  his  own  affairs.1 

61.  Suit  on  uncertain  claims. — It  should  be  borne  in  mind  that 
there  may  be  claims  of'such  uncertain  validity,  both  in  favor  of 
the  trust  estate  and  against  it,  that  it  might  amount  to  a  breach 
of  trust  to  abandon  them  in  the  one  case  or  to  pay  them  in  the 
other,  without  a  decree  of  court  to  direct  the  guardian  what  he 
should  do  in  relation  to  them.  In  such  cases  he  should  get  the 
sanction  of  the  court,  and  his  costs  and  proper  expenses  will  be 
allowed. 

62.  Obligations  of  parents  and  guardians  as  to  support  of  minor 

1  Perry  on  Trusts,  \\  891-903,910;  Schouler's  Dom.  Rel.  462;  Moore  v. 
Shields,  69  N.  C.  50;   McNickle  v.  Henry,  4  Brews.  (Pa.)  150. 

A  guardian  will  not  be  allowed  to  charge  the  estate  of  his  ward  with  any 
part  of  the  expenses  of  a  controversy  on  the  settlement  of  his  accounts, 
when  the  controversy  was  occasioned  by  his  own  fault.  Blake  v.  Pegram, 
109  Mass.  541 ;  see  also  Moore  v.  Shields,  69  N.  C.  50. 

The  court  has,  however,  full  power  to  assess  the  costs,  in  such  cases, 
against  the  guardian,  the  trust  fund,  or  otherwise,  as  in  its  discretion  shall 
seem  just  and  right.     §  6288.     Perry  on  Trusts,  §2  892,  910. 

But  if  a  suit  is  made  necessary  by  the  misconduct  or  failure  of  the  guar- 
dian to  do  his  duty,  or  by  his  mere  caprice  or  obstinacy,  or  by  his  refusal  to 
account,  or  by  his  careless  manner  of  keeping  correct  accounts,  etc.,  he  must 
pay  the  costs.     lb.  gg  900-903, 910. 


ciiAT.  5,  63-65.]        towers  of  guardians.  87 

children.  The  general  rule  is  that  a  father  must  support  his  minor 
children,  if*  he  is  able  to  do  so,  and  in  such  case  the  guardian  can 
not  apply  any  part  of  the  income  of  the  infant's  estate  to  its  sup- 
port, or  at  least  not  without  an  order  of  the  court.1 

63.  But  the  courts  now  look' more  than  formerly  to  the  circum- 
stances of  each  case,  and  take  into  consideration  the  respective  es- 
tates; and  if  the  infant's  estate  is  much  larger  than  the  father's,  or 
when,  though  able  to  support  such  children,  he  is  yet  not  able  to 
support  them  in  such  a  manner  as  their  future  prospects,  fortune, 
and  expectations  justify  or  require,  the  court  may  order' their  main- 
tenance out  of  their  separate  estate.1 

64.  How  order  for,  granted.  If  the  estate  belongs  absolutely  to 
the  minor,  and  no  conflicting  interests  can  arise,  the  order  for  main- 
tenance may  be  made  on  an  application  and  without  suit;  but  if 
there  are  opposing  and  complicated  interests,  the  court  will  not  act 
without  a  regular  suit  and  notice  to  all  parties.2 

65.  A  mother  not  compelled  to  maintain  her  children.  A  mother  is 
entitled  to  maintenance  of  her  children  out  of  their  funds,  whether 
she  is  living  with  the  husband  by  whom  she  had  the  children,  or  is 
living  with  a  second  husband,  or  is  a  widow.3 

1  See  2  Kent's  Com.  pp.  191.  192,  text  and  notes;  Perry  on  Trusts,  \\  612- 
615;  Schouler's  Dom.  Rel.  322,-326,  459;  Story's  Eq.  gf  1346,  1347f,  1354a. 
See  also  notes  on  pp.  79  and  90,  and  §  3110,  as  am.  84  v.  132. 

G.  was  guardian  of  his  children  as  to  property  bequeathed  to  them.  G. 
was  wealthy,  and  maintained  and  educated  his  children  without  charge 
against  them.  When  he  died,  his  estate  was  ample  to  pay  all  his  debts  and 
leave  a  large  surplus  to  his  heirs,  but  his  estate  became  insolvent  by  losses 
incurred  after  his  death.  On  suit  by  his  creditors  against  his  administrators, 
held,  that  the  guardianship  account  was  not  chargeable  for  the  benefit  of 
these  creditors,  with  the  cost  of  educating  and  maintaining  the  children. 
Griffith  v.  Bird,  22  Gratt.  (Va.)  73. 

The  obligation  of  the  father  to  provide  reasonably  for  the  support  of  his 
minor  child,  until  the  latter  is  in  a  condition  to  provide  for  his  own  support, 
is  not  impaired  by  a  decree  which  divorces  the  wife  a  vinculo,  on  account  of 
the  husband's  misconduct,  gives  to  her  the  custody,  care,  and  nurture  of  the 
child,  and  allows  her  a  sum  of  money  as  alimony,  but  with  no  provision  for 
the  child's  support.      Pretzinger  v.  Pretzinger,  45  O.  S.  452. 

The  mother  may  recover  a  reasonable  compensation  from  the  father,  for 
necessaries  furnished  by  her  to  the  child  after  such  decree,  and  may  main- 
tain an  original  action  for  such  compensation  against  the  lather,  in  a  court 
other  than  that  in  which  the  divorce  was  granted.     Id.  452. 

2  Perry  on  Trusts,  g  017. 

3  Perry  on  Trusts,  §  613;  Schouler's  Dom.  Rel.  326;  2  Kent's  Com.  191; 
Halev  v.  Bannister.  4  Mod.  275;  Hodgson  v.  do.,  4  CI.  &  Fin.  323;  11 
Bligh  (N.  S.)  62;  LI.  &  Goo.  Sugd.  259;  LI.  &  Goo.  Plunk.  137;  Lanoy 
v.  Athol,  2  Atk.  447;  Exp.  Pet  re.  7  Ve<.  403;  Beasli-y  v.  McGrath,  2  Sch. 
&  L.  35;   Green  well   v.  do.,  5  Yes.  194;   Douglas   c.  Andrews,  12  Beav.  310; 


88  POWERS  OF  GUARDIANS.  [CHAP.   5,  66-67 

66.  Stepfather  need  not  maintain  stepchildren,  miles*.  A  step- 
father need  not  Bupport  his  wife's  children,  and  is  entitled  to 
maintenance  out  of  their  income,  unless  their  maintenance  costs 
him  nothing.1  But  if  they  are  taken  into  his  house  as  a  part  of 
his  family,  he  is  bound  to  maintain1  and  educate  them  as  if  they 
were  his  own  children. - 

ti~.  Effect  of  ward's  death.  If  the  ward  dies,  all  of  his  prop- 
erty, both  real  and  personal,  at  once  vests,  subject  to  the  payment 
of  debts  and  legal  charges,  in  the  heirs  of  such  ward,  and  the 
guardian  must  at  once  render  his  account.3  The  guardian  can 
not  proceed  to  settle  such  decedent's  estate,  but  an  administrator 
must  be  appointed  for  that  purpose,4  and  to  him  the  guardian 
must  turn  over  all  of  such  ward's  personal  property.  The 
ward's  heirs  of  course  become  the  joint  owners  of  his  real   es- 

Heyward  o.  Cuthbert,  4  Des.  445;  Re  Bostwick,  4  John.  Ch.  100;  Whipple 
V.  Dow.  2  Mass.  415;  Dawes  p.  Howard,  4  Mass.  97:  Bruin  v.  Knott.  1  Phil. 
573;  Anderton  v.  Yates,  5  De  G.  &,  Sm.  202;  Smee  v.  Martin.  1  Bunb. 
131  ;   Hughes  v.  Hughes,  1  Bro.  C.  C.  387. 

Bui  it  is  also  held  that  the  mother,  after  the  death  of  th^  father,  being 
then  the  head  of  the  family,  and  having  control  of  the  minor  children,  is 
bound  to  support  them,  if  she  is  of  sufficient  ability.  Schouler's  Dom.  Rel. 
325;  Dedham  v.  Natick,  16  Mass.  140.     See  page  69  ante,  and  am.  §  3110. 

12  Kent's  Com.  192;  Perry  on  Trusts,  §  613.     Also,  Appendix,  par.  12. 

2  2  Kent's  Com.  192;  Schouler's  Dom.  Rel.  378,  499;  Mulhern  v.  McDavitt, 
82  Mass.  404.  See  also  Douglas'  Appeal,  82  Pa.  St.  169;  Bradford  v. 
Bodfish,  39  Iowa,  681.     See  par.  1 1.  p.  22,  ante. 

3  Schouler's  Dom.  Rel.  424-5;  Tyler  on  Inf.  &  Cov.  \  177;  1  Bouvier's  In- 
stitute. 147. 

4  Raff's  Guide  to  Executors  and  Administrators,  50;  Schouler's  Dom.  Rel. 
425. 

Where  a  judgment  was  recovered  against  H.  by  the  guardian  of  a  minor, 
and  the  minor  dying,  the  judgment  was  paid  to  her  administrator,  the  debtor 
may  have  an  injunction  against  the  collection  of  the  judgment  by  the  guar- 
dian. But  he  must  make  the  administrator  a  party,  that  he  may  contest 
the  payment  if  he  desires.     1833.     Harper  v.  Seely,  W.  390. 

F.  inherited  land  from  his  father.  A  guardian  was  appointed  for  him, 
who,  under  an  order  of  the  court,  sold  a  portion  of  the  land  for  the  support 
and  education  of  his  ward.  F.  died  before  coming  of  age.  The  guardian 
had  money  in  his  hands  arising  from  the  sale  of  the  land.  Held,  that  the 
money  was  to  be  regarded  as  personal  property  acquired  by  the  intestate 
ward,  and  passed  as  such  to  his  half  brothers  and  sisters,  childien  of  his 
mother  by  a  second  marriage.     Armstrong  v.  Miller,  6  O.  118. 


CHAP.  5,  68-71.]  POWERS  OF  GUARDIANS  89 

tate,  and  with  its  partition  among  them  or  otherwise,  the  guar- 
dian has  nothing  whatever  to  do.1   See  par.  255,  chap.  6. 

68.  When  one  of  two  or  more  guardians  ceases  to  act.  When 
there  are  two  or  more  guardians  appointed  for  the  same  minor, 
and  one  dies,  removes  from  the  state,  is  removed,  resigns,  or,. 
being  an  unmarried  female,  marries,  or  otherwise  ceases  to  be  a 
guardian,  this  does  not  affect  the  powers  or  duties  of  the  remain- 
ing guardian  or  guardians,  but  lie  or  they  will  continue  as  if 
such  former  one  had  never  been  appointed.2 

69.  In  such  a  case,  however,  the  situation  of  those  left  to  act, 
might  be  so  changed  as  to  require  a  settlement  of  their  accounts, 
and  a  new  bond  might  be  demanded.  Of  all  this,  the  probate 
judge  is  the  sole  judge,  and  must  act  as  circumstances  seem  to 
require,  in  each  particular  case. 

70.  Ward  can  not  manage  nor  dispose  of  his  estate. — It  is  the 
guardian's  duty  not  to  permit  the  ward  to  sell,  or  otherwise  dis- 
pose of  his  estate,  real  or  personal;  but  on  the  contrary,  to  con- 
trol the  same  himself,  keep  it  and  make  it  as  productive  as  pos- 
sible, unless  the  real  estate  be  ordered  to  be  sold  by  the  proper 
court.  And  if  the  ward  persist  in  selling  or  attempting  to  sell 
his  estate,  the  guardian  should  not  give  up  the  possession  thereof 
to  the  purchaser;  and  if  he  does  sanction  such  sale,  and  sur- 
render possession  under  it,  he  is  guilty  of  a  breach  of  his  fiducial 
duties.3 

71.  Guardian's  duty  as  to  ward's  character,  etc. — A  guardian 
should  fill  the  place  of  a  good  parent.  He  should  maintain  the 
ward  in  a  manner  suitable  to  his  condition  in  life;  should  pro- 
vide him  the  opportunities  of  education,  and  use  his  authority  to 
compel  the  ward  to  embrace  the  opportunities  offered.  The  edu- 
cation should  not  consist  of  schooling  merely,  but  the  morals  of 
the  ward  should  be  carefully  attended  to,  and  the  authority  of 

1  Where  a  guardian,  under  an  order  of  court,  had  sold  the  land  of  his  in- 
fant ward,  who  died  before  coming  of  age,  a  bill  by  parties  claiming  to  be 
next  of  kin  to  recover  the  proceeds  remaining  in  his  hands,  was  sustained, 
though  the  demand  was  for  money  only.  Armstrong  v.  Miller,  6  0.  118. 
See  par.    2,  chapter  11. 

23Red6eld  on  Wills,  532;  Schouler's  Dom.  Rel.  438;  Be  Reynolds,  18 
N.  Y.  Supreme  Ct.  41 ;  Pepper  v.  Stone,  10  Vt.  427. 

84  Dana,  631. 


90  POWERS   OP    GUARDIANS.  [CHAP.  5,  72. 

the  guardian  should  be  judiciously  used  and  kindly  advice  and 
warning  given,  to  the  end  that  the  associations  of  his  ward  be 
proper  ones,  and  his  moral  deportment,  so  far  as  possible,  unex- 
ceptionable.1 Education  includes  also  the  proper  training  of  the 
ward,  so  as  to  fit  him  for  some  of  the  useful  pursuits  of  life,  such 
as  a  trade,  profession, or  business.  The  guardian  assumes  fidelity 
to  these  things  and  the;  like  when  he  accepts  the  appointment, 
gives  the  bond,  and  solemnly  takes  the  oath  required.2 

72.  Repairs. — It  is  the  guardian's  duty  to  make  the  proper 
repairs  on  ward's  real  estate,  and  pay  for  them  out  of  the 
income. 

1  As  the  guardian  is  bound  to  promote  the  moral  welfare  of  the  person  in- 
trusted to  his  care,  he  may  warn  off  from  the  ward's  premises  any  persons 
improper  for  him  to  associate  with,  and,  if  necessary,  expel  them  forcibly. 
This  right  is  to  be  reasonably  construed  ;  and  in  the  use  of  means  and  the 
amount  of  force  necessary  to  effect  this  object,  he  is  allowed  a  liberal  dis- 
cretion, such  as  a  parent  might  exercise  under  like  circumstances.  And  in 
many  other  respects  the  rights  of  a  guardian  resemble  closely  those  of  a 
parent.     Schouler's  Dom.  Rel.  455  (citing  Wood  v.  Gale,  10  N.  H.  247). 

2  "The  guardian's  duties  as  to  the  ward's  person  are  those  of  protection, 
education  and  maintenance.  In  exercising  them,  he  is  bound  to  regard  the 
ward's  best  interests.  Guardians,  as  we  have  seen,  are  seldom  appointed 
where  there  is  not  some  property.  But  even  though  the  ward  is  penniless, 
we  are  not  to  suppose  that  one  vested  with  the  full  right  of  custody  can  ne- 
glect with  impunity  those  offices  of  tenderness  which  common  charity  as 
well  as  parental  affection  suggest.  For  to  the  orphan  he  stands  in  the  place 
of  a  parent,  and  supplies  that  watchfulness,  care,  and  discipline  which  are  es- 
sential to  the  young  in  the  formation  of  their  habits,  and  of  which,  being 
deprived  altogether,  they  would  better  die  than  live. 

"It  is,  however,  to  be  always  borne  in  mind  that  while  the  father  is  bound 
to  educate  and  maintain  his  children  absolutely  and  from  his  own  means,  no 
such  pecuniary  responsibility  is  imposed  upon. the  guardian.  The  hitter 
need  only  use  for  that  purpose  the  ward's  fortunes.  Hence,  in  supplying 
the  wants  of  his  ward,  he  is  to  consider,  not  the  style  of  life  to  which  they 
have  been  accustomed,  so  much  as  the  income  of  their  estate  at  his  dis- 
posal. Whatever  their  social  rank  may  have  been,  he  may,  provided  they 
are  left  destitute,  place  them  to  work,  or  if  they  are  too  young  and  feeble, 
surrender  them  to  some  charitable  institution.  He  should,  however,  act 
with  delicacy  and  prudence;  he  may  properly  consider  in  this  connection 
the  habits  and  tastes  of  the  children  and  the  wishes  of  their  relatives;  and 
he  can  relieve  himself  of  responsibility  by  asking  judicial  guidance." 
Schouler's  Dom.  Rel.  455. 


chap.  5,  73-74.]    powers  of  guardians.  91 

73.  Row  guardian  may  collect  interest  due  ward  on  registered  gov- 
ernment bonds. — See  chapter  25,  paragraphs  32-48. 

74.  Other  duties,  etc. — As  to  the  guardian's  duties  relating  to  the 
lease  of  land,  sale  of  real  and  personal  estate,  bonds,  etc.,  see  the 
chapters  respectively  devoted  to  those  subjects.  See  also  chapter 
25. 


92 


SALE   OF   WARD'S    PROPERTY. 


[CHAP.  6. 


CHAPTER  6. 


SALE   OF    WARD'S   PROPERTY. 


Par. 


PERSONAL    PROPERTY. 

1.  When  ward's  personal  property 
may  be  sold. 


REAL   PROPERTY. 

2.  Who  may  sell  ward's  real  estate, 

and  why. 
3-4.  Jurisdiction  of  courts  in  such 

sale. 

5.  The  petition  for  sale  of  real  es- 
tate must  contain  what? 

6.  Dower  of  widow. 

7.  Liens,  leases,  partition,  etc. 

8.  Who  are  defendants. 
9-23.  Form  of  petition. 

24-26.  Verification  of  petition. 
27.  Who  administers  oath. 
28-29.  Notice  of  filing  petition,  how 
served,  etc. 

30.  Code  of  common  pleas  to  gov- 
ern  in  probate  court,  so  far  as 
applicable. 

31.  Since  when. 

32.  Infants;   how  served;  law  found 

where. 

33.  Of  summons. 

34.  Infant's  age;  why  stated. 
35-36.  Should   the   notice  be  served 

by  the  guardian. 

37.  Further  provisions  as  to  notice. 

38-39.  Form  of  journal  entry  of  or- 
der of  the  court  as  to  notice  to 
defendant. 


Par. 
40-41.  Form  of  notice   to  defend- 
ants. 

42.  When,  and  how  to  be  served. 

43.  Return  of. 
44-45.  Form  of  affidavit  to. 
46.  Directions  to  sheriff,  etc. 
47-49.  Service  by  publication  ;    af- 
fidavit required,  etc. 

50-56.  Form  of  affidavit  for  service 
b}r  publication. 

57.  Form  of  notice  by  publica- 
tion. 

58-59.  Publication  made  where,  and 
how  long. 

60-63.  Form  of  proof  of  publica- 
tion. 

64-66.  Is  a  guardian  ad  litem  ne- 
cessary in  such  sales. 

67.  As  to  duties,  appointment,  etc., 
of  guardian  ad  litem. 

68.  How  widow  or  widower  may  elect 
to  be  endowed  out  of  proceeds 
of  sale.  Effect  of  such  elec- 
tion. 

69.  Guardian  of  insane  person  may 
act  for  ward. 

70-73.  Answer  waiving  dower  in 
land,  and  asking  for  value  in 
money. 

74.  Verification  not  required. 

75.  Minor  heir  not  prejudiced 
by  collusive  assignment  of 
dower. 


CHAP.  6.] 


SALE   OF    WARD  S    PROPERTY. 


93 


Par 

76.  Hearing  of  petition;  appraisers 
appointed;  town  lots  laid  off, 

77-88.  Form  of  order  of  appraise- 
ment, and  finding  of  court;  de- 
cree for  appraisement,  etc. 

89.  Guardian  usually  suggests  ap- 
praisers. 

90.  When  appraiser  fails  to  act. 
91-97.  Certificate  to  the  appraisers, 

and  form  of. 

98.  If  no  dower  to  assign,  what  to 
omit. 

99.  Oath  of  appraisers. 
100-103.  Form  of  appraisers'  oath. 

104.  How  appraisers  to  proceed. 

105.  Dower  assigned  in  rents,  etc. 

106.  Appraisers  duty  in  such  £ases. 

107.  How  returned  to  court. 
108-111.  Form  of  appraisement  and 

assignment  of  dower. 

112.  Guardian  to  execute  additional 
bond  before  sale. 

113-118.  Form  of  journal  entry  ap- 
proving appraisement,  plat  and 
survey.  Widow's  do  we;  order- 
ing guardian's  bond. 

119.  If  no  dower,  what  to  do. 

120-126.  Form  of  guardian's  bond 
where  real  estate  is  to  be  sold. 

127.  Order  of  sale;  how  sale  to  be 
made. 

128.  Deferred  payments  secured  by 
mortgage. 

129.  May  be  sold  at  private  sale, 
when,  if. 

130.  Decree,  etc. ,  when  town  lots  are" 
laid  out. 

131-146.  Form  of  decree  for  sale. 

147.  When  decree  for  private  sale 
may  be  made. 

148.  How  decree  for  private  sale 
obtain  eel. 

149-152.  Form  of  application  to  sell 
real  estate  at  private  sale. 


Par. 
153-157.  May  be  sworn  to.     Form  of 

oath. 
158-160.  The   form    of  affidavit   for 

private  sale. 
161-165.  Another  form. 
166.  Precipe  for  order  of  sale. 
167-170.  Form  of  precipe  for. 
171.  Notice  of  sale. 
172-175.  Form  of  notice  of  sale. 

176.  Where  sale  must  be  made. 

177.  Guardian  may  sub-divide  and 
sell;  his  risk  in  so  doing. 

178.  Best  to  get  order  of  court. 

179.  How  sale  conducted. 

180.  Appraisers,  etc.,  can  not  buy. 

181.  Reportof  sale;  confirmation  and 
deed. 

182.  If  no  sale  made,  what  to  do. 
183-185.  Form   of   a    return   to   an 

order  of  sale,  when  a  sale  has 
been  made. 

186.  Attached  copy  of  notice,  etc. 

187-194.  Forms  of  the  affidavit  prov- 
ing the  publication  of  the  no- 
tice. 

195.  If  no  newspaper  in  the  coun- 
ty. 

196-197.  When  not  sold  for  want  of 
bidders. 

198.  Report,  when  no  sale  is  effected. 

199-203.  Form  of  report;  sale  not 
made. 

204-206.  Form  of  order  of  re-ap- 
praisement. 

207-208.  Order  to  sell  at  a  fixed 
price. 

209.  Report  of  private  sale. 

210.  Affidavit  required  in  case  of 
private  sale. 

211-215.  Form  of  affidavit,  etc. 
216.  Confirmation  of  sale. 
217-219    Form  of  order  of  confirma- 
tion. 


94  SALE   OF   WARD'S   PROPERTY.  [CHAP.  6,  1. 

Par.  Par. 

220.  Entry,  if  liens  adjusted.  243-246.  Form  of  bond. 

2l'1.  Taxes    and  penalties   must  be  247-248.  If  no  bond  be  given,  what 

paid  out  of  proceeds.  to  do. 

222-229.  Guardian's  deed.  249.  If  given,  what. 

230.  To  whom   note    and   mortgage  250.  If  bond  not  required. 

given.  251.  Remedy  of  purchaser,  if  guard- 

231-238.   Form  of  mortgage.  ian's  sale  is  invalid. 

239."' Sale  of  lands  in  this  state  by  252.  How  possession  gained  of  hinds 

foreign  guardians;    application  sold  at  guardian's  sale. 

for  sale;  security.  253.  Kind   ol    title    guardian's    sale 

240.  The  proceedings.  conveys ;  caveat  emptor. 

241-242.  Order  of  court  for  security;  254.  Application  of  purchase  money. 

Form  of.  255.  As  to  ancestral  property. 

1.  When  ward's  personal  property  may  be  sold.  The  guardian 
of  the  person  or  estate,  and  of  the  estate  only,  can,  when  for  the 
interest  of  the  ward,  sell  all  or  any  part  of  the  personal  estate 
of  the  ward.1 

1 1 6280. 

It  would  not  be  prudent  for  the  guardian  to  make  any  important  change 
in  the  character  of  any  considerable  part  of  the  ward's  estate,  such  as  sell- 
ing the  personal  property  and  investing  the  property  in  real  estate,  without 
first  obtaining,  for  his  protection,  an  order  of  court  permitting  or  directing 
him  to  do  so.  See  Story's  Eq.,  §  1357 ;  Perry  on  Trusts,  ??606,  607;  Schoul- 
er's  Dom.  Rel.  466,  480;  paragraph  12,  chap.  4.  Of  course,  be  must  even 
then  act  in  good  faith  for  the  best  interests  of  his  ward.     See  par.  40,  chap.  5. 

The  guardian  may  dispose  of  the  personal  estate  of  his  ward  as  he  may 
think  most  beneficial  for  the  ward,  and  a  person  who  purchases,  in  good 
faith  and  for  value,  such  property,  with  no  knowledge  of  fraudulent  intent 
on  the  part  of  the  guardian,  is  not  responsible  for  a  misapplication  of  the 
proceeds.  Strong  v.  Hope  (Ham.  Co.  Dist.  Ct.  1879);  4  Cinti.  Law  Bui. 
1034;  Field  v.  Schieffelin,  7  Johns.  (N.  Y.)  Ch.  150;  Woodward  v.  Don- 
nally,  27  Ala.  198.     See  also  notes  on  pp.  83,  96,  138. 

This  applies  to  every  species  of  personal  property,  though  it  is  not  usual 
to  sell  family  pictures,  plate,  watches,  and  personal  ornaments,  but  to  keep 
them,  by  which  to  remember  their  former  owners.  And  in  other  peculiar 
cases,  as  where  the  ward  is  nearly  of. age,  and  is  soon  to  enter  upon  a  well- 
stocked  farm,  which  is  his  own  property,  the  guardian  will  be  justified  in 
not  selling  off  the  stock.  (Reeve's  Dom.  Rel.  326;  Tyler  on  Inf.  and  Cov. 
262;   Sehouler's  Dom.  Rel.  475.) 

But  see  paragraphs  44-46,  56,  and  notes  thereto,  of  chapter  5,  as  to  con- 
ducting any  business  for  ward's  benefit. 


CHAP.    6,    2.]  SALE    OF    WARD'S    PROPERTY.  95 

2.  Who  may  sell  ward's  real  estate,  and  why.  Whenever  nec- 
essary for  the  education,  support,  or  payment  of  just  debts  of 
any  minor,  or  for  the  discharge  of  any  liens  'on  the  real  estate 
of  such  minor,  or  whenever  the  real  estate  of  such  minor  is  suf- 
fering unavoidable  waste,  or  a  better  investment  of  the  value 
thereof  can  be  made,  and  the  court  shall  be  satisfied  that  a  sale 
thereof  will  be  for  the  benefit  of  any  minor,  the  probate  court 
by  which  a  guardian  of  the  person  and  estate,  or  of  the  estate 
only,  has  been  appointed,  may,  on  the  application  of  such  guard- 
ian, order  the  real  estate  of  such  minor,  or  a  part  thereof,  situ- 
ate in  this  state,  to  be  sold.1 

1§6280. 

The  court  of  common  pleas  that  appointed  a  guardian  may  empower  him 
to  sell  the  land  of  a  minor  situate  in  another  count}'.  Where  a  guardian's 
sale  has  been  examined  and  confirmed  by  the  court,  and  the  journal  entry 
shows  that  a  bond  has  been  directed  and  sureties  approved,  it  will  be 
presumed  that  the  bond  was  executed.  The  law  does  not  require  the  bond 
to  be  carried  into  the  record.     Maxsom  v.  Sawyer,  12  0.  105. 

A  military  land-warrant  was  issued  to  the  widow  and  minor  child  of  a  de- 
ceased soldier  of  the  Mexican  war,  under  the  act  of  Congress  of  February 
11, 1847,  which  provided  that  the  guardian  of  such  minor  may,  "  upon  being 
duly  authorized  by  the  orphans'  or  other  court  having  probate  jurisdiction, 
have  power  to  sell"  the  warrant;  and  the  guardian  of  the  minor,  with  the 
widow,  assigned  the  warrant,  without  being  authorized  to  do  so  by  the  pro- 
bate court,  to  a  person  who  knew  all  the  facts  of  the  case,  but  supposed  the 
assiguraeutgave  him  a  clear  title  to  the  warrant :  Held — The  assignment  of 
the  guardian,  without  the  authority  of  the  proper  court,  did  not  transfer  the 
right  of  the  minor  in  the  warrant  to  the  purchaser.  Mack  v.  Brammer.  28 
0.  S.  508. 

A  sale  made  by  an  administrator,  on  the  joint  application  of  himself  and 
the  guardian  of  the  minor  heirs,  for  the  support  of  such  heirs  and  the 
widow,  is  void.  The  application  may  not  have  been  fatally  defective — too 
many  may  not  vitiate;  but  the  guardian  alone  could  make  application  for 
this  purpose,  and  the  administrator  had  no  power  to  apply  for  or  execute 
the  sale  for  this  purpose.     Newcomb's  Lessee  v.  Smith,  5  0.  447. 

Formerly,  the  guardianship  of  a  minor  female  expired,  by  operation  of 
law,  when  the  ward  arrived  at  the  age  of  twelve  years.  A  guardian  ap- 
pointed for  such  ward,  when  under  the  age  of  twelve  years,  could  not,  as  such 
guardian,  by  petition  filed  after  the  ward  arrives  at  the  age  of  twelve  jrears, 
Bell  the  ward's  land.  A  sale,  under  an  order  of  court,  upon  such  petition, 
was  void.     Perry  v.  Brainard,  11  0.  442.     See  note  4,  page  25. 

Under  the  act  relating  to  guardians,  passed  February  9,  1824  (2  Chase 


96  SALE    OF    WARD'S    PROPERTY.  [i  HAP.   6,  '6. 

3.  Guardian  may  ask  for  sale  of  real  estate  of  two  or  more 
wards;  guardians  may  join.  Where  any  person  is  such  guard- 
ian for  two  or  more  minors  whose  real  estate  is  owned  b}'  them, 

1317,  Swan's  Rev.  Stat.  444),  the  i  nly  power  to  authorize  a  guardian  to  sell 
the  real  estate  <>i'  his  ward,  prior  to  the  creation  of  the  probate  court,  was 
vested  in  the  court  of  common  pleas  of  the  county  in  which  the  guardian 
was"appointed.     Foresman  v.  Haag,  36  0.  S.  102. 

The  provision  in  section  3  of  the  amendatory  act  of  February  2!!,  1846 
(2  Curwen,  12?>7,  Swan's  Rev.  Stat.  447),  requiring  guardians  to  be  governed, 
"in  the  execution  of  any  order  of  sale"  of  the  real  estate  of  their  wards 
"by  the  same  regulations  that  maybe  prescribed,  and  in  force  when  such 
order  is  made,  for  the  sale"  of  lands  by  administrators,  does  not  prescribe 
the  court  to  which  application  may  be  made  by  the  guardian  to  obtain  such 
order  of  sale,  but  relates  to  the  manner  in  which  the  order  is  to  be  executed 
after  it  has  been  granted  by  the  proper  court.     lb. 

As  to  compelling  guardian  to  pay  over  to  administrator,  for  the  payment 
of  debts  in  pursuance  of  an  agreement  to  that  effect,  the  proceeds  of  a  sale 
made  by  the  guardian,  see  Bradstreet  v.  Shank,  (Hamilton  District  Court)  5 
Cinti.  Law  Bui.  362. 

A  guardian  can  receive  nothing  but  money  in  payment  for  a  sale  of  his 
ward's  property.  He,  can  not  receive  his  own  note  in  payment,  and  if  he 
does  so,  and  afterwards  fails  to  account  for  and  paj"  over  in  money  the  pro- 
ceeds of  the  sale,  his  ward  may  maintain  an  action  against  the  purchaser 
for  the  purchase-money,  or  set  aside  the  sale.  17  Barb.  15;  51  Ind.  148;  14 
Ind.  324;  43  Ind.  203. 

The  appellee  herein  who  purchased  the  property  of  the  guardian,  insists 
that  he  had  a  right  to  expect  he  would  apply  his  individual  note  on  the  pur- 
chase-money due  Esther  Bevis,  who  was  a  married  woman,  and  that  Stover 
was  acting  as  her  agent,  as  the  law  did  not  permit  him  to  apply  it  on  the 
amount  due  his  ward,  upon  the  principle  that  it  will  be  presumed,  in  the  ab- 
sence of  notice  to  the  contrary-,  that  the  trustee  will  do  his  duty  in  the  man- 
agement of  the  business  of  his  trust.  But  Stover,  being  only  the  agent,  of 
Esther,  had  no  right  to  accept  any  thing  for  his  principals.  Bevis  v.  Heflin 
(Sup.  Ct.  Ind.  '79),  3  Cin.  Law  Bui.  1132.  See  also  Story  on  Agency,  §  98, 
and  note  2,  next  page. 

The  estate  of  a  ward  in  remainder  in  land,  depending  on  the  life  of  his 
father,  may  be  sold  in  the  manner  prescribed  by  law  for  guardian's  sale  of 
ward's  land,  during  the  life  of  the  father.  Garland  v.  Loring,  1  Rand 
(Va.)  396. 

The  provisions  of  the  statute  relating  to  guardian's  sales  must  be  com- 
plied with,  or  the  sale  will  be  void.  Cooper  v.  Sunderland,  3  Iowa,  114 ;  Fra- 
zier  v.  Steenrod,  7  Iowa,  339;  Shanks  v.  Seamonds,  24  Iowa,  131;  Wells  v. 
Cowherd,  2  Mete.  (Ky.)  514;  Bell  v.  Clark,  same,  573;  Mattingly  v.  Read, 
3  same,  524 .  Watts  v.  Pond,  4  same,  61 ;  Carpenter  v.  Strothers,  16  B.  Mon. 


CHAP.  6,  4-5.]  SA.LE    OF    WARD'S    PROPERTY.  97 

jointly,  or  in  common,  the  guardian  may  in  one  application  ask 
for  the  sale  of  the  interest  of  all,  or  any  number  of  his  wards, 
in  such  real  estate ;  and  where  different  persons  are  guardians 
of  minors  so  interested  jointly,  or  in  common,  in  the  same  real 
estate,  such  guardians  may  join  in  one  application  ;  and  on  the 
hearing,  in  either  case,  the  court  may  authorize  the  sale  of  the 
interest  of  one  or  more,  or  of  all  such  wards,  as,  in  its  discre- 
tion, it  may  deem  right  and  proper.1 

4.  Jurisdiction  of  courts  in  such  sale.  The  probate  court  has 
concurrent  jurisdiction  in  the  sale  of  lands  on  petition  by  ex- 
ecutors, administrators  and  guardians,  and  the  assignment  of 
dower  in  such  cases  of  sale;2  and  such  jurisdiction,  once  ac- 
quired, is  exclusive  of  that  of  every  other  probate  court.3 

5.  The  petition  for  sale  of  real  estate;  must  contain  what ;  town 
lots.  The  application  for  the  sale  of  real  estate  must  be  by  pe- 
tition, which  must  set  forth  specifically :  First — The  value  and 

(Ky.)  289;  Burnett  v.  Churchill,  18  same,  387;  Wyatt  v.  Mansfield,  same, 
779;  Banker  v.  Hopewell,  Mete.  (Ky.),  260;  Megowan  v.  Way,  same,  418; 
Leary  v.  Fletcher,  1  Ired.  (N.  C.)  L.  259;  Ducket  v.  Skinner,  11  same,  431; 
Spruil  v.  Davenport.  3  Jones  (N.  C),  L.  42;  Pendleton  v.  Trueblood, 
same,  96.  20  Cal.  352;  47  111.  278;  2  Pel.  (U.  S.)  157;  41  Pa.  St.  120;  25 
Mo.  584. 

1  g  6280. 

2  I  525. 

Concurrent  jurisdiction  conferred  upon  probate  courts,  in  the  sale  of  land 
on  petition  of  executors,  administrators  and  guardians,  by  section  3  of  the 
act  of  March  14,  1853  (3  Curwen,  2041,  S.  &  C.  1213),  vests  in  tht  probate 
court  of  the  several  counties  only  such  jurisdiction  in  regard  to  ordering 
such  sales  as  was  possessed  by  the  courts  of  common  pleas  in  such  coun- 
ties respectively.     Foresman  v.  Haag,  36  O.  S.  102. 

Hence,  where,  at  the  time  of  the  passage  of  said  act,  the  court  of  com- 
mon pleas  in  a  particular  county  was  authorized  to  order  the  sale  of  the 
lands  of  a  ward,  on  the  application  of  his  guardian,  the  probate  court  of 
such  county  could  not  order  such  sale.     lb. 

The  probate  court  of  Pickaway  county  duly  appointed,  in  1853,  guard- 
ians for  certain  minors  residing  in  Scioto  county,  and  on  proceedings  insti- 
tuted by  the  guardians  in  the  probate  court  of  Cuyahoga  county,  certain  real 
estate  of  the  wards,  situate  in  the  county  last  named,  was,  in  1854,  sold  by 
order  of  that  court,  the  sales  confirmed,  and  the  deeds  executed  accord- 
ingly. Held,  that  the  proceedings  in  the  probate  court  of  Cuyahoga  county 
were  void  for  want  of  jurisdiction.     lb. 

See  also  4th,  5th  and  6th  paragraphs  of  note  1,  page  95. 

3  §527. 

7 


98  SALE    OP    WARDS    PROPERTY.  CHAP.  G,  5.] 

character  of  all  personal  estate  belonging  to  such  ward  that  has 
come  to  the  knowledge  or  possession  of  such  guardian.  Second — 
The  disposition  made  of  such  personal  estate.  Third — The 
amount  and  condition  of  such  ward's  personal  estate,  if  an}-,  de- 
pendent upon  the  settlement  of  an}-  decedent's  estate,  or  the 
execution  of  any  trust.  Fourth — The  annual  value  of  the  real 
estate  of  the  ward,  with  a  pertinent  description  of  such  real 
estate.  Fifth — The  amount  of  rent  received,  and  the  applica- 
tion thereof.  Sixth — The  proposed  manner  of  re-investing  the 
proceeds  of  the  sale,  if  asked  for  that  purpose.  Seventh — Each 
item  of  indebtedness,  or  the  amount  and  character  of  the  lien, 
if  the  sale  is  prayed  for  the  discharge  thereof.  Eighth — The  age 
of  the  ward,  where  and  with  whom  residing.  Ninth — If  there 
be  no  personal  estate  belonging  to  such  ward  in  possession  or 
expectancy,  and  none  has  come  into  the  hands  of  such  guardian, 
and  no  rents  have  been  received,  the  fact  must  be  stated  in  tho 
petition  :  If  it  is  desired  that  the  land  sought  to  be  sold,  or  any 
part  thereof,  shall  be  laid  out  in  town  lots,  that  fact  must  be 
stated,  and  the  reasons  therefor,  and  the  manner  in  which  the 
same  is  to  be  laid  out.1 

1  ?  6281. 

The  statute  for  the  sale  of  infants'  estates  by  guardians  requires  that 
the  petition  of  the  guardian  shall  contain  a  description  of  all  the  real  estate 
of  the  ward,  and,  when  the  contrary  does  not  appear,  it  will  he  presumed 
that  the  real  estate  described  in  the  petition  includes  all  that  the  ward  owns. 
Mauarr  v.  Parrish,  26  0.  S.  636. 

In  a  proceeding  under  the  statute  for  the  sale  of  lands  of  a  minor  by  a 
guardian,  the  petition  described  the  lots  as  Nos.  73,  74  and  76,  in  East  Iron- 
ton,  and  as  having  corne  to  the  ward  by  descent.  The  appraisement  and  or- 
der of  sale  described  them  as  Nos.  173,  174  and  175,  the  latter  being  the  true 
description  of  the  lots  actually  owned  by  the  ward,  and  which  came  to  her 
by  descent.  In  an  action  by  the  ward  against  the  purchaser  of  one  of  the 
lots,  at  a  sale  b}T  the  guardian  in  pursuance  of  said  order  of  the  probate 
court,  it  was  held,  that  it  is  to  be  presumed  that  the  ward  owned  only  the 
three  lots  sold,  and  that  there  was  a  mere  mistake  in  numbering  them  in 
the  petition,  and  that  the  petition  was  sufficient  to  give  the  court  jurisdic- 
tion.    Ibid. 

The  failure  of  the  court  to  require  an  additional  bond  of  the  guardian,  be- 
fore allowing  the  order  of  sale,  or  to  appoint  appraisers  who  have  the  proper 
qualifications,  in  this  case  residence  in  the  county,  although  it  may  be  ground 
for  error,  does  not  render  the  proceedings  void,  or  the  saie  invalid.  Ibid.  ; 
also,  to  same  effect,  Arrowsmith  v  Harmoning,  42  O.  S.  254.  See  note,  p. 
118.     For  construction  of  tormer  law,  see  Armstrong  v.  Stiller,  6  O.  118. 


CHAP.  6,  6-23.]  SALE    OF    WARD'S   PROPERTY.  99 

G.  Dower  of  widow,  If  there  is  a  claim  of  a  widow  for 
dower,  that  should  also  be  set  out  in  the  petition,1  and  in  case 
dower  should  already  have  been  assigned  to  the  widow  in  the 
premises  described  in  the  petition,  under  proceedings  previously 
instituted  by  her,  a  description  of  that  portion  of  the  premises 
covered  by  the  dower  should  be  given  in  the  petition. 

7.  Liens,  leases,  partitions,  etc.  The  petition  should  contain  a 
statement  of  the  mortgages,2  judgments,  vendor's  liens,  or  other 
liens  existing  against  such  real  estate,  known  to  the  petitioner; 
and  if  there  be  any  questions  relating  to  the  title  of  the  ward, 
whether  growing  out  of  trusts,  equities,  or  any  other  matter, 
they  should  be  specifically  stated  ;  as  well  as  any  leases  of  any 
portions  of  such  real  estate,  with  the  terms  of  the  same.  If 
the  ward  holds  the  real  estate  in  common  with  others,  that 
fact  should  be  set  forth  in  the  petition  ;  in  which  case  the  pe- 
tition should  ask  for  a  sale  of  the  ward's  undivided  interest — 
Leaving  a  division  of  the  premises  for  the  joint  action  of  the  pur- 
chaser at  the  sale,  and  those  holding  in  common  with  iho  ward, 
in  the  manner  provided  in  chapter  11,  below;  and  in  all  cases  the 
nature  and  extent  of  his  interest,  or  the  title  in  and  to  the  real 
estate  prescribed  in  the  petition  should  be  clearly  and  fully  men- 
tioned. 

8.  Who  are  defendants. — The  ward  or  wards,  and  others  specified 
in  paragraph  28,  below,  together  with  the  other  parties  in  interest 
designated  above,  are  the  defendants  to  the  petition.3 

9-23.  Form  of  petition. — The  form  of  petition,  journal  entries, 
etc.,  will  be  given  as  if  there  wei'e  but  one  ward.  Should  there  be 
more,  the  necessary  changes  are  easily  made: 

v.  Macalester,  9  O.  19 ;   Este  v.  Strong,  2  O.  401;  and  jVIaxsom  v.  Sawyer,  12 
O.  195. 

1  See  paragraphs  4  and  28,  this  chapter. 

2  The  mortgage  lien  remains  in  full  force,,  if  the  mortgagee  is  not  made  a 
party  to  the  suit.     Holloway  v.  Stuart's  admr.,  19  O.  S.  472. 

See  also  note  1,  above. 

3  A  ward  will  not  be  bound  by  a  decree  affecting  his  property,  where  the 
guardian  was  a  party  to  the  suit,  but  not  the  ward;  nor  will  a  court  of 
equity  entertain  a  bill  to  enforce  such  decree  against  the  ward,  it  being  as 
to  him  a  nullity.     Este  v.  Strong,  2  O.  401. 


100  SALE    OF    WARD'S   PROPERTY.  [CHAP.  G. 

count}-,  Ohio,  ss.,  Probate   Court  [or,  Court   of  Common 

Picas]. 

A.  B.,  guardian  of  C.  D.,  a  minor, 

plaintiff, 

vs. 

SaX  V'l  77^77;  ^  Fetition  t0  seU  real  estate- 
trustee  [and  name  all  other  per- 
sons ichose  lights  this  suit  affects, 
and  give  age  of  each  minor  de- 
fendant^. ' 

The  plaintiff  represents  that  he  is  the  duly  appointed  and 
qualified  guardian  of  C.  D.,  now  of  the  age  of years,  and  re- 
siding with  ,  at . 

[If  there  was  never  any  personal  property,  say  .]  That  no  per- 
sonal estate  of  any  kind,  belonging  to  said  ward,  ever  came  to 
the  possession  or  knowledge  of  the  plaintiff.  [But  if  there  ever 
was  any  personal  estate,  then  say,  instead  of  the  above  :]  That  all 
of  the  personal  estate  belonging  to  said  ward,  that  ever  came  to 
the  possession  or  knowledge  of  the  plaintiff,  consisted  of  [Here 
describe  it  generally ;  as,  farming  implements,  horses,  cattle,  notes, 
moneys,  bonds  and  mortgages,  state  stocks,  bank  stock,  etc.,  etc.,']  and 
was  of  the  value  of  dollars.  That  the  plaintiff  has  dis- 
posed of  said  estate  in  full  [or  if  in  part  only,  say,  to  the  amount 

of dollars]  as  follows,  to-wit :      Expended  for  said  ward  in 

clothing, dollars;    boarding,  dollars;    tuition,  books, 

etc., dollars ;  in  payment  of  a  certain  mortgage  held  by  X. 

Y.  upon  lot  No.  — ,  in  Grlendale, dollars  ;  for  taxes  on  same 

lot, dollars  ;    paying  mechanics'  lien   thereon, dollars 

[And  so  of  any  other  general  expenditure ;  and  if  any  such  liens  as 
mentioned  above  are  in  force  and  unpaid,  state  the  facts 
accordingly']. 

That  there  is  no  personal  estate  of  said  ward  dependent  upon 
the  settlement  of  any  decedent's  estate  or  the  execution  of  any 
trust,  nor  in  expectancy ;  [or  if  the  fact  be  otherwise,  instead  of 

the  above,  say,  That  there  will  be  the  amount  of dollars,  or, 

an  amount  not  yet  ascertained,  supposed  to  be  about dol- 
lars, coming  to  said  ward  from  the  estate  of  E.  D.,  not  yet  finally 
settled  ;  or  such  an  amount  will  be  due  to  said  ward  from  the 


CHAP.  6.]  SALE   OF   WAKD's   PROPERTY.  101 

trust  estate  in  the  hands  of  G.  H.,  who  was  made  trustee  by  E.  D. 
That  [state  facts  required  by  par.  28,  as  to  descent  of  land,  kinship,  etc., 
when  necessary],  and  which  will  probably  be  paid  [state  when]. 

That  said  ward  is  the  owner  of  the  fee  simple  [or,  life  estate  or 
leasehold,  a*  the  ruxp  may  be]  of  the  following  described  real  estate, 
situate  in  [state  in  what  village,  city,  or  township,  county,  and  state],. to- 
wit :  [Here  describe  it  by  metes  and  bounds*  or  in  other  proper  way, 
as  carefully  as  should  be  done  in  a  deed],  which  real  estate  is  worth 

annually dollars;   [or  if  unproductive  land,  say,  which  is  wild 

land,  and  yields  no  income,  etc.,  as  may  be.] 

That  the  plaintiff  has  received dollars,  in  rents,  from  all 

the  real  estate  of  his  ward,  and  has  expended  the  same  as  follows  : 

In  repairs, dollars  ;  taxes  on  real  estate, dollars  [etc., 

etc.,  as  the  facts  are,  and  if  any  money  is  remaining  on  hand,  so 
state,  and  the  amount;  or  if  all  the  lands  yield  no  income  at  all,  say, 
instead  of  the  above,  That  the  plaintiff  has  received  no  rents 
whatever  from  any  of  said  ward's  real  estate.] 

That  the  sale  of  said  real  estate  is  necessary  for  the  mainte- 
nance and  education  of  said  ward  [or  if  it  is  proposed  to  reinvest 
the  money  arising  from  the  sale,  say  or  add,  That  the  plaintiff  be- 
lieves it  will  be  for  the  interest  of  said  ward  to  sell  said  real  es- 
tate and  reinvest  the  money  arising  therefrom  in  (state  stocks, 
loans  upon  mortgage  or  otherwise).] 

That  said  ward  is  indebted  to  J.  K.  for  necessaries  in  clothing, 

in  the  sum  of dollars  ;  to  L.  M.  for  boarding, dollars  ;  to 

O.  P.  for   tuition, dollars,  etc. ;  [or  if  the  fact  be  so,  say, 

There  is  no  indebtedness  of  the  said  ward.] 

That  X.  Y.  has  a  lien  on  said  real  estate,  by  way  of  mortgage, 

to  sesure  the  sum  of dollars  now  due  [or  not  yet  due,  as  the 

case  may  be],  and  T.  U.  has  a    mechanics'  lien  for dollars, 

which  accrued  in  the  lifetime  of  E.  D.,  father  of  said  ward  [or 
if  no  liens  exist,  say,  There  are  no  liens  upon  said  real  estate  to 
the  knowledge  of  the  plaintiff.] 

[If  there  be  rights  of  dower  on  the  land,  say :]  That  L.  D.,  widow 
[or,  widower]  of  E.  D.,  has  a  dower  estate  in  said  lands. 

[If  it  is  desired  to  lay  out  the  land,  or  part  of  it,  in  town  lots, say:] 

That  it  is  desired  to  lay  out  said  land  [or  state  ivliat  part  of  it]  into 

town  lots,  for  the  reason  that  said  land  [or,  tract  last  designated] 


102  sale  of  ward's  property.       [chap.  6, 24-28 

is  situate  within  the  corporate  limits  of  the  village  of [or  other- 
wise give  the  reasons  according  to  the  facts'],  for  which  reason  said  laud 
would  sell  for  more  money  thau  if  not  so  divided. 

[And  also  state  clearly  any  other  fact*  directed  by  laiv  or  required 
by  the  circumstances  of  the  case  to  be  stated.] 

The  plaintiff  therefore  prays  that  the  said  C.  D.  [and  here  add 
the  names  of  'ill  persons  to  be  made  defendants']  may  be  made  defend- 
ant [or,  defendants,  as  the  case  may  be]  to  this  petition.  [If  there  be 
doiver  rights  and  lienlwlder*,  add:  That  dower  may  be  set  off  to  said 
widow  and  the  rights  and  liens  of  said  lienholders  may  be  ad- 
justed], and  that  plaintiff  may  be  ordered  to  sell  said  real  estate 
[and  if  it  is  proposed  to  reinvest  the  money,  add,  and  to  reinvest  the 
money  arising  therefrom  as  is  hereinbefore  proposed],  and  for  other 
proper  relief,  etc.  A.  B. ,  Guardian  of  C.  D. 

24.  Verification  and  form  of. — The  petition  must  be  verified  by 
the  oath  of  the  gu  irdian,1  which  may  be  in  form  as  follows  : 2 

25-26.  The  State  of  Ohio,  county,  ss.: 

A.  B. ,  being  duly  sworn,  says  that  he,  as  guardian  as  aforesaid, 
is  the  plaintiff  mentioned  in  the  foregoing  petition,  and  that  the 
facts  therein  stated  are  true,  as  he  verily  believes.  A.  B. 

Sworn  to  before  me,  and   signed  in   my  presence,  this day 

of ,  a.  d.  .  A.  C.  Probate  Judge,  etc. 

27.  Who  administers  oath. — This  oath  may  be  administered  by 
any  officer  authorized  to  administer  oaths  generally.3 

28.  Notice  of  filing  petition,  how  served,  release  of  doiver,  etc. — 
"Upon  such  petition  being  filed,  verified  by  the  oath  of  the  guar- 
dian, the  court  shall  order  the  petitioner  to  give  notice  to  his  ward,  to 
the  husband  or  wife  of  such  ward,  and  to  all  persons  entitled  to  the 
next  estate  of  inheritance  m  such  real  estate,  who  shall  be  defend- 
ant-; to  the  petition,  of  the  filing  and  demand  thereof,  and  the  time 
when  the  same  will  be  heard,  in  such  maimer  as  to  the  court  shall 
seem  reasonable  and  proper.  But  only  the  ward  and  husband  or 
wife  of  such  ward  need  be  so  notified  or  made  defendants,  unless 
the  said  estate  came  to  such  ward  by  devise,  descent,  or  deed  of 
gift  from  any  ancestor,  and  if  such  ward  has  then  living  a  brother 

1§6282.  2  H  5105,  5107.  3§5107. 


CHAP.  6,  29-31.]        SALE  OF  WARD',?  PROPERTY.  103 

or  sister  of  the  half  blood  and  of  the  blood  of  such  ancestor,  or 
their  legal  representatives ;  and  in  such  proceeding  the  right  and 
expectancy  of  dower  of  the  husband  or  wife  of  such  ward  in  such 
premises,  may  be  released  in  the  manner  and  otherwise  treated  and 
dealt  with  as  is  provided  in  section  6306  of  the  Revised  Statutes."1 

29.  Journal  entry,  ordering  notice  of  sale,  and  time  of  hearing. 
Said  A.  B.,  as  guardian  of  B.  C,  plaintiff,  having  filed  his  peti- 
tion for  the  sale  of  real  estate  of  said  B.  C,  it  is  now  ordered  that 
said  A.  B.  give  notice  in  writing  to  his  said  ward  (and  date  to  whom 
else,  if  any  one),  defendants   herein,  of  the  pendency  and  prayer  of 

said  petition  ;  and  the  hearing  of  this  cause  is  set  for ,  the 

day  of ,  A.  d.  18 — ,  at o'clock  —  M. 

30.  What  laws  to  govern  in  probate  court,  so  far  as  applicable. — 
"The  provisions  of  law  governing  civil  proceedings  in  the  court  of 
common  pleas  shall,  so  far  as  applicable,  govern  like  proceedings  in 
the  probate  court,  when  there  is  no  provision  on  the  subject  in  this 
title."2 

31.  Since  when. — Previous  to  the  adoption  of  the  codified  law3 

x\  6282.     See  also  §  6406,  found  in  paragraph  37.  this  chapter. 

These  words  of  the  former  as  well  as  tin-  present  law,  "shall  order  the  pe- 
titioner to  give  notice,"  were  never  construed  >"  as  to  require  the  petitioner 
in  person  to  give  the  notice;  he  may  do  so  by  some  third  person,  or  by  the 
sheriff  or  other  officer,  as  the  court  may  direct  or  permit.     See  par.  37. 

Where  a  record  of  a  proceeding  in  the  court  of  common  pleas  s^ts  out 
that  it  was  "shown  to  the  court  that  due  notice  had  been  given  to  the  de- 
fendants: Held,  that  this  language  imports  a  finding  by  the  court  that  the 
notice  which  the  law  required  under  the  circumstances  had  been  regularly 
given.  Evidence  will  not  be  received  to  contradict  this  finding  of  the 
court.  Where  jurisdiction  is  shown,  or  must  be  presumed,  the  judgment  or 
order  of  the  court  can  not  be  collaterally  impeached."  Richards  v.  Skiff  et 
al..  8  Ohio  St.  586. 

A  sale  of  the  ward's  land,  by  his  guardian,  without  the  notice  required  by 
law,  is  void  for  want  of  jurisdiction  of  the  court  ordering  such  sale.  Lyon 
v.  Vanatta,  35  Iowa,  521  ;    .Mus_rrave  v.  Conover,  85  111.  374. 

If,  however,  the  notice  is  defective  merely,  the  jurisdiction  is  saved,  and 
the  proceeding  can  not  be  attacked  collaterally.  Lyon  v.  Vanatta,  35  Iowa, 
521. 

2§  6411. 

3  See  75  0.  L.  pp.  836-970. 


104  SALE  OF  WARD'S  PROPERTY.       [CHAP.  6.,  32-35. 

governing  procedure  in  probate  courts,  and  now  being  Title  II 
of  Part  Third  of  the  Revised  Statutes,  the  foregoing  provision 
was  not  in  force.1 

32.  Infants;  how  served;  law  found  where. — Title  I  of  Part  Third 
of  these  statutes  contains  the  law  governing  "Procedure  in 
the  courts  of  common  pleas  and  superior  courts,  and  district 
courts  on  appeal"  referred  to  in  paragraph  30,  above;  and  this 
Title  I  contains  the  following  provision,  which  is  no  doubt  ap- 
plicable to  the  service  of  notice  in  probate  courts. 

33.  "  When  the  defendant  is  under  the  age  of  fourteen  years, 
the  service  [of  summons]  must  be  upon  him,  and  also  upon  his 
guardian,  or  his  father;  or,  if  neither  his  guardian  nor  his 
father  can  be  found,  then  upon  his  mother,  or  the  person  having 
the  care  of  such  infant,  or  with  whom  he  lives  ;  if  neither  of 
these  can  be  found,  or  if  the  defendant  is  a  minor  over  fourteen 
years  of  age,  service  upon  the  defendant  alone  shall  be  sufficient; 
and  the  manner  of  service  may  be  the  same  as  in  the  case  of 
adults."2 

34.  Infant's  age;  why  stated. — So  that  service  may  be  properly 
made  on  the  minor  defendants,  their  ages  should  be  stated  in 
the  petition,  as  already  shown.3 

35.  Should  the  notice  be  served  by  the  guardian  ? — The  law  as 
found  in  the  paragraph  28  above  docs  not  seem  to  forbid  the 
guardian's  making  the  service ;  yet  it  seems  better  that  it  should 
be  made,  if  not  by  the  sheriff  or  other  officer,  at  least  by  a  dis- 
interested party,  rather  than  by  the  guardian,  who,  as  plaintiff, 
stands  in  the  relation  of  antagonist  to  all  the  defendants,  and 
consequently,  in  theory  at  least,  if  not  in  fact,  may  be  interested 

1  The  nearest  approximate  provision  in  the  old  law  was  as  follows:  "In 
the  exercise  of  the  jurisdiction  conferred  by  this  act,  the  probate  judge 
shall  have  the  same  powers,  perform  the  same  duties,  and  be  governed  by 
the  same  rules  and  regulations  as  are  provided  by  law  for  tbe  courts  of  com- 
mon pleas,  and  the  judges  thereof,  in  vacation,  so  far  as  the  same  may  be 
consistent  with  this  and  other  acts  now  in  force."  Swan  &  Critchfield,  p. 
1217,  §  LVIII.  It  seems  to  have  been  the  belief  of  the  codifying  commission 
and  of  the  legislature  that  this  differed  in  meaning  from  section  6411,  as  no 
reference  whatever  is  made  to  it  at  the  end  of  the  section.  See  close  of  sec- 
tion 6412,  also  new. 

2  §  5047.  See  also  \  6481.  3See  par  9,  above. 


CHAP.  6,  36-39.]       SALE  of  ward's  property.  105 

ill  their  not  being  served  at  all,  and  in  having  it  appear  of  record 
that  they  have  been  duly  notified. 

36.  It  may  well  happen  that  one  of  the  defendant  wards,  or 
possibly  the  only  defendant,  may  be  a  child  less  than,  say,  two 
years  old.  To  serve  a  written  notice  on  such  a  defendant,  except 
as  directed  in  paragraph  33,  would  be  a  most  useless  absurdity; 
and  it  would  be  an  absurdity  almost  equally  great,  should  the 
parents  of  the  ward  be  dead,  and  the  plaintiff  be  compelled  to  serve 
the  notice  on  such  infant,  and  upon  himself  as  its  guardian. 

37.  Further  provisions  as  to  notice. — The  chapter  containing  the 
law  given  as  paragraph  33  above  provides  that  summons  shall  be 
served  by  the  sheriff,1  or  by  any  person  not  a  party  to  the  suit.2 
And  it  is  provided  in  another  place  that  "when  notice  of  any  pro- 
ceedings in  a  probate  court  are  required  by  law,  or  deemed  neces- 
sary by  the  probate  judge,  and  the  manner  of  giving  the  same  is 
not  directed  by  statute,  the  probate  judge  shall  order  notice  of  such 
proceedings  to  be  given  to  all  persons  interested  therein,  in  such 
manner  and  for  such  length  of  time  as  he  may  deem  reasonable.3 

38-39.  Form  of  Journal  Entry  of  Order  of  the  Court  as  to  Notice  to 

Defendants. 

A.  B.,  Guardian  of  C.  D.,~) 

vs.  >  Petition  to  sell  land. 

Said  C.  D.,  his  Ward.      ) 

This  day  came  the  said  A.  B.,  as  guardian  of  C.  D.,  and  filed 
his  petition,  duly  verified,  asking  for  the  sale  of  the  real  estate 
of  his  ward,  for  the  allotment  of  dower  and  the  adjustment  of 
liens  upon  said  land,  and  for  its  division  into  town  lots ;  where- 
upon it  is  by  the  court  ordered,  that  said  A.  B. ,  by  the  sheriff, 
[if  so~\  shall  cause  notice  thereof  to  be  given  to  said  C.  D.,  [and 
to  L.  D.,  his  mother  or  father,  etc.;  and  also  to  L.  D.,  if  there  be  a 
widow,  and  to  X.  Y.  and  T.  N.,  etc.,  as  facts  may  require],  in  writing, 
personally,  and  by  leaving  copies  thereof  at  t lie  usual  place  of 
residence  of  each  of  those  who  can  not  be  served  personally, 
■ weeks  [or,  days]  before  the  day  of  the  hearing  of  said  ap- 
plication to  sell  said  real  estate;   which  time  of  hearing  is  hereby 

1  §5037.  2  2  5041.  8§6406. 


106  SALE    OF    WARD'S    PROPERTY.        [CHAP.  (5,  40-43. 

fixed  by  the  court,  for  the day  of ,  a.  d. ,  at  — 

o'clock,  —  M. 

40.  Service  of  summons  or  notice. — If  the  court  directs  that 
service  of  notice  be  made  by  the  sheriff,  the  service  will  proba- 
bly be  in  the  form  of  a  summons,  as  in  civil  actions,  in  which 
'•u<e  no  form  or  instructions  are  considered  necessary  except  as 
given  in  par.  46  ;  but  the  following  would  bo  a  sufficient  form  of 
notice,  even  if  served  by  the  sheriff  or  other  officer. 

41.  Form  of  Notice  to  Defendants. 

To  C.  D.,  L.  D.,  X.  T.,  and  T.  U. : 

You  are  hereby  notified  that  on  the  day  of ,  a.  d. 

18 — ,  A.  B.,  as  guardian  of  C.  D.,  a  minor  child  of  E.  B.,  de- 
ceased, late  of county,  Ohio,  filed  in  the  probate  court  of 

county,  Ohio,  a  petition,  the  object  and  prayer  of  which  is, 

to  procure  said  court  to  order  the  sale  of  the  real  estate  of  the 

said  C.  D.,  situate  in  the  county  of ,  Ohio,  and  described  as 

follows,  to-wit :  [Here  describe  it  as  in  the  petition;  and  if  the 
prayer  is,  to  reinvest  the  money,  add,  and  to  authorize  the  said 
guardian  to  reinvest  the  funds  in  here  state  the  manner,  as 
in  the  petition :  and  if  dower  is  to  be  assigned,  add,  and  that 
dower  may  be  assigned  to  said  L.  D.,  in  the  premises;  and  if 
liens  are  set  out  in  the  petition,  add,  and  that  the  liens  of  the  other 
defendants  may  be  adjusted ;  and,  if  so,  for  the  division  of  said 
land  into  town  lots.] 

The  application  therefor  will  be  for  a  hearing  by  said  court,  on 

the day  of ,  a.  d ,  at  —  o'clock,  —  m.,  at  which  time 

an  order  will  be  asked  as  prayed  for  in  said  petition. 

{Signed)  A.  B.,  Guardian  of  C.  D. 

Dated  this day  of ,  a.  d.  18 — . 

42.  When  and  how  to  be  served. — A  true  copy  of  this  notice 
should  be  given  personally  to  each  of  the  defendants,  as  long,  at 
least,  before  the  day  set  for  the  hearing,  as  is  directed  in  the 
order  of  court,  or  left  at  their  usual  place  of  residence  with  some 
one  there  found,  or  if  no  one  is  there  found,  then  left  in  some 
place  at  the  residence  where  it  will  most  probably  be  discovered 
upon  the  return  of  the  family ;  but  service  on  minors  must  be 
as  stated  in  paragraphs  32-36  above. 

43.  Return  of. — The  notice  should  then  be  returned  to  the  court, 


chap.  6,  44-47.]      sale  of  ward's  property.  107 

with  an  affidavit  by  the  person  serving  it,  on  the  back  thereof, 
of  the  service,  and  its  manner  of  service.  If  served  by  the  sheriff, 
this  affidavit  is  not  required. 

44-45.  Form  of  such  Affidavit. 

The  State  of  Ohio, county,  ss. 

A.  B.,  being  duly  sworn,  says  that  on  the day  of 


A.  D.  18 — .  he  served  the  within  notice  on  the  within  named  C. 
D.,  L.  D.,  X.  Y.  and  T.  U.,  by  leaving  with  each  of  them  per- 
sonally a  certified  copy  thereof  (or  if  not  personally,  as  to  any  of 
them,  then  say,  as  to  those  not  served  personally,  by  copy  left  at  the 
usual  place  of  residence  of  [here  naming  theni]  who  could  not  be 
seen  personally). 

(Signed)  A.  B. 

Sworn  to  and   subscribed  before  me,  this  day  of-- , 

a.  d.  18—.  A.  C,  Probate  Judge,  etc. 

46.  Directions  to  sheriff,  etc. — If  the  notice  or  summons  is  to  be 
served  by  the  sheriff,  directions  to  that  officer  as  to  where  the 
persons  to  be  served  reside  or  may  be  found  should  be  left  for  or 
given  to  that  officer,  in  such  way  as  may  be  customary  in  the 
county  where  the  proceedings  are  pending. 

47.  Service  by  publication ;  affidavit  required,  etc.— The  law 
provides  that  service  by  publication  may  be  made  on  any  de- 
fendant who  resides  out  of  the  state  ;  or  whose  residence  is  un- 
known ;  or  who,  though  a  resident,  has  departed  from  the  county 
for  the  purpose  of  avoiding  service  ;  or  who  keeps  himself  con- 
cealed for  the  same  purpose;  or  which  is  a  foreign  corporation, 
having  no  agent  in  this  state  on  whom  service  can  be  made.  In 
any  such  case,  when  the  residence  of  a  defendant  is  known,  it 
must  be  stated  in  the  publication  ;  and,  immediately  after  the 
first  publication,  the  party  making  the  service  must  deliver  to 
the  clerk  copies  of  the  publication,  with  the  proper  postage,  and 
the  clerk  must  mail  a  copy  to  each  defendant,  directed  to  his 
residence  named  therein,  and  make  an  entry  thereof  on  the  ap- 
pearance docket.  In  all  other  cases,  the  party  making  the  ser- 
vice, his  agent  or  attorney,  must,  before  the  hearing,  make  and 
file  an  affidavit  that  the  residence  of  the  defendant  is  unknown, 
and  can  not,  with  reasonable  diligence,  be  ascertained.1 

1  §  5048,  as  am.  87  O.  L.  225.     See  also  par.  100,  chap.  10. 


108  SALE    OF    WARD'S    PROPERTY.        [CHAP.  6,  48-56. 

48.  Before  such  service  can  be  made,  an  affidavit  must  be  filed 
that  service  of  a  summons  can  not  be  made  in  this  state,  on  the 
defendant  to  be  served  by  publication,  and  that  the  case  is  one 
of  those  mentioned  in  the  preceding  paragraph.  After  filing 
such  affidavit,  service  by  publication  may  be  made.1 

49.  When  an  heir  or  a  devisee  of  a  deceased  person  is  a  neces- 
sary party,  and  it  appears  by  affidavit  that  his  name  and  resi- 
dence are  unknown  to  the  plaintiff,  proceedings  against  him  may 
be  had  without  naming  him  ;  and  the  court,  or  a  judge  thereof, 
must  make  an  order  respecting  the  publication  of  notice,  but  the 
order  must  require  no  less  than  six  weeks'  publication. - 

50-56.  Form  of  Affidavit  for  Service  by  Publication. 

county,  Ohio,  ss.,  Probate  Court. 

A.  B,  guardian  of  C.  D,  plaintiff,  i  JffidavU  fo  obtain  pubUcationy 


vs-  etc 

Said  C.  D.  et  al.,  defendants. 

State  of  Ohio, county,  ss. 

A.  B.  being  sworn,  says  that  he  is  the  said  plaintiff  \or,  the 
attoiaey  of  the  said  plaintiff],  *  that  the  said  defendant,  A.  V., 
is  a  resident  of  Fairfield,  in  the  State  of  Iowa,  f  that  service  of 
summons  on  him  can  not  be  made  in  this  state,  and  that  the 
case  is  one  of  those  mentioned  in  §  5048  of  the  Revised  Statutes 
of  Ohio. 

[If  the  defendants  residence  be  unknown,  omit  the  matter  between 
the  *  and  f,  and  insert  instead'],  that  the  residence  of  said  B.  Y.  is 
unknown  to  affiant,  and  can  not  with  reasonable  diligence  be 
ascertained. 

[7/  there  be  a  non-resident  defendant,  A.  V.,  whose  residence  is 
knoicn.  and  another  defendant  whose  residence  is  not  /mown,  and 
can  not  be  ascertained,  omit  nothing  above,  and  insert,  at  the  f,  the 
matter  concerning  l>.  V.  as  given. ~\ 

[/r  there  be  an  heir  or  devisee,  as  mentioned  in  paragraph  49, 
inseit  also.]   that  the   residence  [and   name,   if  so]  of  the  said 

defendant,    heir    of  ,    mentioned    in    the    petition    in    said 

cause,  is  ))r,  are]  unknown  to  said  plaintiff;  and  omit  or  retain 

1 1  504».  2?  50.")?,,  as  amended,  79  0.  L.  26. 


CHAP.  6,  57-62.]        SALE  of  ward's  property.  109 

the   matter   concerning   A.    Y.   and   B.    "P.,  as   the   circumstances 
reqiure.~\ 

Sworn  [or,  affirmed]  to  and  subscribed  before  me  this day 

of ,  18—.  H.  M.,  Notary  Public, county,  Ohio. 

57.  Form  of  Notice  by  Publication. 

LEGAL    NOTICE. 

A.  V.,  who  resides  at  Fairfield,  in  the  State  of  Iowa  [add,  if  so, 
B.  V.,  whose  residence  is  unknown,  and  the  unknown  heirs  of 
L.  V.]  will  take  notice  that  A.  B.,  guardian  of  C.  D.,  a  minor 

child  of  E.  B.,  deceased,  late  of county,  Ohio,  (and  proceed 

substantially  the  same  as  in  form  of  notice  in  paragraph  41  above.'] 

58.  Publication  made  where,  and  how  long. — The  publication 
must  be  made  six  consecutive  weeks,  in  a  newspaper  printed  in 
the  county  where  the  petition  is  filed ;  or,  if  there  be  no  news- 
paper printed  in  the  county,  then  in  a  newspaper  printed  in  this 
state,  and  of  general  circulation  in  such  county  ;  and  if  it  is 
made  in  a  daily  newspaper,  one  insertion  a  week  will  be  suffi- 
cient. It  must  contain  a  summary  statement  of  the  object  and 
prayer  of  the  petition,  mention  the  court  wherein  it  is  filed,  and 
notify  the  person  or  persons  thus  to  be  served  when  they  are 
required  to  answer.1 

59.  Service  by  publication  is  deemed  complete  at  the  date  of 
the  last  publication,  when  made  in  the  manner  and  for  the  time 
prescribed  in  the  preceding  paragraphs  ;  and  such  service  must 
be  proved  by  affidavit.2 

60-62.  Form  of  Proof  of  Publication. 
The  State  of  Ohio, county,  ss. 

P.  F.  being  sworn,  says  that  he  is  the  publisher  [or,  bookkeeper 

or  otherwise,  as  the  fact  may  be~\,  of  the ,  a  newspaper  printed 

and  of  general  circulation  in  said  county,  and  that  a  notice,  of 
which  the  annexed  is  a  true  copy,  was  published  in  said  paper 

on  of  each  week  for  six  consecutive  weeks,  beginning  on 

the day  of ,  18 — . 

[The  following  may  be  added,  if  so]:  Affiant  further  says  that 
a  daily  and  weekly  edition  of  said  newspaper  is  published ;  that 

^OSO.  2 2  5051.     40  O.  S.  636. 


110  SALE    OF    WARD'S    PROPERTY.       [CHAP.  G,  G3-65. 

said  notice  appeared  in  the  daily  edition,  the  circulation  of  which 
in  said  county  exceeds  that  of  the  weekly  edition,  and  that  the 
cost  of  publication  in  the  daily  does  not  exceed  that  in  the 
weekly  edition. 

Sworn  to  and  subscribed   before  me,  this  day  of  , 

18—. 

Eichard  Eoe,  Notary  Public.  county,  Ohio. 

63.  This  affidavit  might  be  made  by  the  guardian  or  other 
person  connected  with  the  ease,  but  it  is  customary  and  best  to 
have  it  made  by  some  one  connected  with  the  paper  printing  it. 

64.  Is  a  guardian  ad  litem  necessary  t  There  is  no  provision  made 
in  the  statutes  governing  guardian's  sales  of  ward's  real  estate, 
for  a  guardian  ad  litem,  nor  is  there  any  allusion  to  such  guardian. 
But  section  5003  is  a  part  of  Title  I.,  mentioned  in  paragraph  32 
above,  and  is  as  follows:  "  The  defense  of  an  infant  must  be  by 
a  guardian  for  the  suit,  who  may  be  appointed  by  the  court  in 
which  the  action  is  prosecuted,  or  by  a  judge  thereof,  or  by  a  pro- 
bate judge." 

65.  It  may  be  stated  as  a  general  principle  of  law,  so  well  es- 
tablished as  to  need  no  citations  of  authorities  to  sustain  it,  that 
every  defendant  is  entitled  to  a  hearing  in  court,  and  that  he  is 
not  bound  by  the  action  of  the  court  unless  this  is  granted  him. 
Can  a  minor,  as  the  law  now  is,  be  said  to  have  such  a  hearing 
in  such  matters  as  are  now  under  consideration,  unless  he  ap- 
pears by  a  guardian  ad  litem,  or  by  some  person  acting  substan- 
tiall}r  in  that  capacity?1 

Section  6144,  relating  to  sale  of  lands  by  executors  or  administrators  to 
pay  debts  of  decedents,  expressly  provides  that  "  It  shall  not  be  necessary, 
unless  the  prayer  of  the  petition  for  a  sale  is  contested,  to  appoint  guard- 
ians ad  litem  for  infant  heirs  or  devisees  or  other  persons  having  the  next 
estate  of  inheritance  from  the  deceased  who  are  defendants;  and  no  such 
guardian  shall  have  authority  to  waive  notice  or  service  of  summons."  See 
also,  in  such  case,  Ewing  v.  Hollister,  7  0.  2d  pt.  138. 

But  the  law  relating  to  sales  by  guardians  contains  no  such  provision.  In 
the  case  of  only  one  child-defendant,  supposed  in  paragraph  36,  and  similar 
cases,  who  would  there  be  to  make  a  contest,  if  no  guardian  ad  litem  is  ap- 
pointed, no  matter  how  great  the  need  of  a  contest  might  be? 

Under  the  chancery  act  of  1810,  and  the  supplementary  act  of  1812,  pro- 
ceedings in  a  court  of  common  pleas  were  held   binding  against  minors 


CHAP.  6,  66-69.]   SALE  of  ward's  property.  Ill 

66.  It  may  be  safely  said  that  it  is  good  practice,  and  the  only 
safe  and  prudent  course  to  pursue,  to  appoint  a  guardian  for  the 
suit  in  all  cases  where  a  guardian  sells  real  estate  of  his  ward. 
There  is  no  good  reason  to  be  urged  against  it,  except  the  attend- 
ant expense;  and  if  it  be  granted,  for  argument's  sake,  that  the 
law  does  not  require  it,  would  not  cautious  persons  be  deterred  from 
bidding  on  lands  to  which  the  ward,  or  some  one  under  him,  might 
set  no  a  claim  long  afterwards,  and  thus  more  loss  result  than  could 
occur  by  a  compliance  with  the  probable,  if  not  the  certain,  mean- 
ing of  the  law  ? 

67.  As  to  duties,  appointment,  etc.,  of  guardians  ad  litem,  see  chap- 
ter 23. 

68.  Hoxv  widow  or  widower  may  elect  to  he  endowed  out  of  proceeds 
of  sale — effect  of  suck  election.  In  actions  for  the  sale  of  real  estate 
by  guardians,  the  widow  or  widower  of  any  decedent  who  has  a 
dower  interest  therein,  being  a  party,  may  file  an  answer,  and 
waive  the  assignment  of  dower  by  metes  and  bounds,  and  ask  to 
have  the  estate  sold  free  of  dower,  and  to  have  allowed,  in  lieu 
thereof,  such  sum  of  money  out  of  the  proceeds  of  the  sale,  as  the 
court  deems  the  just  and  reasonable  value  of  her  dower  interest 
therein.1  The  answer  of  the  widow  or  widower  will  have  the  same 
force  and  effect,  and  must  be  taken  and  held  to  be,  in  all  respects, 
as  a  deed  of  release  to  the  purchaser  of  such  estate  of  the  dower 
interest  therein  of  such  widow  or  widower.2 

69.  Guardian  of  insane  person  may  act  for  ward. — The  guardian  of 
a  widow  or  widower  who  has  been  adjudged  insane  may  appear  and 
answer  for  such  insane  person  in  such  action,  subject  to  the  ap- 
proval of  the  court  in  which  the  action  is  pending;  and  the  answer 
of  the  guardian  will  have  the  same  force  and  effect  as  if  the  widow 
or  widower  answered  personally  ;   but  the  guardian  will  be  liable  to 

who  were  made  defendants  and  served  by  publication,  though  no  guardians 
had  been  appointed.     Morgan  v.  Burnett,  18  O.  535. 

It  was  held  to  be  error  on  a  bill  of  revivor,  to  decide  against  infant  de- 
fendants, until  a  guardian  ad  litem  had  been  appointed.  St.  Clair  v.  Smith 
3  O  355. 

It  is  not  mere  irregularity,  but  is  error  in  fact,  to  take  judgment  against 
infant  defendants  without  the  appointment  of  a  guardian  ad  litem.  The 
remedy,  under  Mew  York  Code  of  Procedure,  is  by  motion  to  set  aside  the" 
proceedings.  McMurray  v.  same,  9  Abb.  (N.  Y.)  Pr.  N.  S.  315;  41  How. 
Pr.  41. 

x§  5719,  as  am.  86  O.  L.  185.  2§  5720,  as  am.  86  O.  L.  186. 


112  SALE  OF  WARD'S  PROPERTY.        [(HAP.  6,  70-75. 

the  widow  or  widower,  or  the  heirs,  for  nil  damage  or  loss  sustained 
by  his  fraud  or  collusion,  notwithstanding  the  approval  of  the  court.1 

70-73.  Answer,  waiving  dower,  etc.  (change  "  widow"  to  "widower" 
etc.,  when  facts  require  it.) 

A.  B.,  guardian  of  C.  D.,  ~\      county,  ss. 

vs.  >  Probate  Court. 

Said  C.  D.  and  others,  defendants.  )      Answer  of  widow. 

The  said  L.  D.,  widow,  [by  A.  D.,  her  guardian,  if  so],  hereby 
consents  to  the  sale  of  the  premises  prayed  for  in  plaintiff's  pe- 
tition in  this  cause,  and  waives  the  assignment  of  dower  in  said 
premises  to  her  by  metes  and  bounds,  or  in  rents  and  profits, 
and  asks  the  court  to  allow  her,  in  lieu  of  said  dower,  such  sum 
of  money,  out  of  the  proceeds  of  such  sale,  as  the  court  may 
deem  to  be  the  reasonable  value  of  her  dower  interest  in  said 

premises. 

L.  D.,  (widow's  own  signature.) 

[or,  L.  1)., 

By  A.  G-.,  her  attorney]. 
[or,  L.  D., 

By  A.  D.,  her  guardian.] 

State  of  Ohio, county,  ss. 

L.  D.,  being  duly  sworn,  says  that  she  is  the  widow  men- 
tioned in   the  foregoing  answer,  and  that  the  several  matters 

and  things  set  forth  in  said  answer  are  true. 

L.  D. 

Sworn  (or,  affirmed)  to  and  subscribed  before  me,  this  

day  of a.  d.  18 — . 

A.  C,  Probate  Judge, 

[or,  other  competent  officer.] 

74.  Verification  not  required.  The  foregoing  answer,  when 
made  by  the  guardian,  need  not  be  verified  on  oath.2 

75.  Minor  heir  not  to  be  prejudiced  by  collusive  assignment  of  dower. — 
If,  during  the  minority  of  an  heir,  dower  be  assigned  to  a  widow  or 
widower  not  entitled  thereto,  or,  if  the  same  was  recovered  by  the  de- 

1  §5721,  as  am.  86  0.  L.    186.  2§5103. 


CHAP.  6,  76-88.]        SALE  OF  ward's  PROPERTY.  113 

fault,  fraud,  or  collusion  of  the  guardian,  such  heir  may,  oncoming 
of  age,  have  an  action  against  such  widow  or  widower  to  recover 
the  lands  wrongfully  awarded.1 

76.  Hearing  of  petition — appraisers  appointed — town  lots  laid 
off.  At  the  time  appointed  for  the  hearing  of  said  petition,  and 
upon  being  satisfied  that  the  notice  named  in  the  order  (and  re- 
required  in  par.  28)  has  been  given,  and  that  such  real  estate 
ought  to  be  sold,  the  court  must  appoint  three  freeholders  of  the 
county  where  the  real  estate  pi'oposed  to  be  sold  is  situated,  who 
are  not  of  kin  to  the  petitioner,  to  appraise  such  real  estate ;  and 
if  the  petition  seeks  to  have  the  land,  or  any  part  of  it,  laid  out 
into  town  lots,  and  the  court  finds  that  it  will  be  to  the  advan- 
tage of  the  ward  to  have  the  same  done,  the  court  must  also  au- 
thorize the  survey  and  platting  of  the  land  for  that  purpose.2 

77-88.  Form  of  Order  of  Appraisement,  and  Findings,  of  Court. 

[In  the  following  forms  omit  parts  not  applicable  to  case  in  hand,  change  singular  to  plural 
number,  widow  to  widower,  etc.,  when  necessary.] 

A.  B.,  guardian  of  C.  D.,  ) county,  ss.     Probate  Court. 

v.  >      Decree  for  appraisement,  etc.,  in  pro- 

Said  C.  D.  and  others,   j  ceedings  to  sell  ward's  land. 

This  cause  coming  on  this  day  to  be  heard,  upon  the  petition 
of  plaintiff,  exhibits  and  testimony,  and  upon  the  return  of  the 
notice  heretofore  ordered,  and  the  answers  of  G-.  L.,  the  guardian 
ad  litem,  of  L.  D.,  the  widow,  and  of  [name  them]  the  other  de- 
fendants ;  and  the  court  being  fully  advised  in  the  premises 
finds : 

That  all  the  defendants  herein  have  been  duly  and  legally 
served  with  process,  and  have  been  duly  notified  of  the  pend- 
ency and  prayer  of  the  petition,  as  prescribed  by  law. 

That  the  statements  of  said  petition  are  true,  and  that  the 
real  estate  described  therein  ought  to  be  sold,  as  prayed  for  in 
said  petition. 

That  it  would  be  for  the  advantage  of  said  ward  to  have  said 
land  [or.  a  part  of  said  landj  laid  out  into  town  lots,  as  prayed 
for  in  said  petition  [or  otherwise,  as  the  court  may  deem  best.] 

1  g  5717,  as  am.  86  v.  185.  2  §  6283. 


114  SALE    OF    WARD'S   PROPERTY.  ("CTIAP.  G,  89. 

That  said  L.  ~D.,  widow  of  said  E.  D.,  is  entitled  to  dower  in 
said  real  estate. 

That  said  L.  D  ,  widow,  waives,  as  in  her  answer  herein 
set  forth,  assignment  of  her  dower  in  said  premises,  and  de-' 
sires  that  the  same  may  be  sold  free  and  clear  of  her  said 
dower,  and  that  the  court  set  off  to  her,  out  of  the  proceeds  of 
the  sale  of  said  premises,  such  a  sum  of  money  as  may  be  just 
and  reasonable,  in  lieu  of  her  said  dower  interest.  [0/  course, 
omit  this  when  not  so,  and  find  such  other  things  as  each  case  may 
require.'] 

Therefore  it  is  ordered  : 

That  G-.  H.,  I.  J.,  and   K.   L.,  judicious   freeholders  of  this 

county,  [or,   if   the  lands  are   in   another  county,  say  of   ■ 

county],  and  i>ot  of  kin  to  the  petitioner,  be  and  are  hereby  ap- 
pointed appraisers  in  said  cause,  and  that  they  be  sworn  as 
required  by  law,  before  entering  upon  the  discharge  of  their  du- 
ties as  said  appraisers. 

That  said  appraisers,  upon  actual  view  of  the  premises,  de- 
scribed in  said  petition,  appraise  the  same  at  its  fair  cash  value, 
free  from  [or,  subject  to,  as  may  be]  the  dower  of  said  L.  D., 
widow  of  E.  D.,  deceased. 

That  said  appraisers  assign  and  set  off  to  said  L.  D.,  widow, 
as  her  dower  therein,  the  one  equal  third  part  in  value  of  said 
real  estate  described  in  said  petition. 

That  said  appraisers  divide  said  real  estate  \or,  a  part  of  said 
real  estate,  and  designate  what  part]  into  town  lots,  and  make  a 
correct  survey  and  plat  of  said  land  so  divided,  first  calling  to 
their  assistance,  if  they  deem  it  necessary,  a  competent  engineer 
or  surveyor. 

[And  make  such  further  orders  as  the  case  may  require.] 

And  that  said  appraisers  make  return  of  their  appraisement 

and  other  doings  hereunder  to  this  court,  on  or  before  the 

day  of ,  a.  d.  18 — . 

89.  Guardian  usually  suggests  appraisers.  It  is  customary  for 
the  guardian  to  suggest  the  names  of  the  appraisers-,  he  being  pre- 
sumably better  acquainted  with  suitable  persons  therefor  in  the 
vicinity  of  the  land  than  the  court,  and  if  no  objection  is  known 
or  made  to  them,  the  court  usually  appoints  those  so  suggested. 


chap.  6,  90-97.]      sale  of  ward's  property.  115 

90.  When  appraiser  fails  to  act.  In  the  sales  of  lands  by  ex- 
ecutors, etc.,  it  is  provided  that  when  any  person  appointed  by 
the  court  as  an  appraiser  fails  to  discharge  his  duties,  . 
the  executor  or  administrator  may  apply  to  the  court  making  the 
order  of  appraisement  and  have  another  appraiser  appointed 
thereby1  Though,  in  such  eases,  in  sales  by  q;uardians.  the  law- 
is  silent,  the  same  course  as  indicated  in  this  paragraph 
should  be  pursued.  But  to  avoid  all  doubts,  as  well  as  delays, 
such  persons  should  be  selected  as  will  attend  to  the  matter,  first 
consulting  each  one  as  to  whether  he  can  and  will  do  so,  if  ap- 
pointed, and  see  that  he  appears  at  the  proper  time  and  place. 

91-97.  Certificate  to  the  appraisers,  and  form  of.  The  court 
should  then  issue  a  certificate  to  the  appraisers,  of  their  appoint- 
ment,2 which  may  be  as  follows : 

county,  Ohio,  ss.     Probate  Court. 

A.  B.,  guardian  of  C.  D.,") 

vs-  [  Appraisers  certificate  of  appointment. 

Said  C.  D.  and  others.     ) 

To  G.  H.,  I.  J,  K.  L  : 

You  are  hereby  notified  that  you  have  been  appointed  by  said 

probate  court  of  county,  Ohio,  as  appraisers  in  said  case; 

and  you  are  hereby  ordered,  upon  your  oaths,  and  upon  actual 
view  of  the  premises  described  below — 

To  truly  and  impartially  appraise,  at  its  fair  cash  value,  free 
from  [or,  subject  to,  as  may  be']  the  dower  of  L.  D.,  widow  of  B. 
D.,  deceased,  the  following  described  real  estate,  to-wit  [here 
clearly  describe  the  property]  : 

You  are  further  ordered  to  assign  and  set  off  to  said  L.  D., 
widow,  as  her  dower  therein,  the  one  equal  third  part  of  said 
real  estate. 

[And  give  such  further  orders  as  are  found  in  the  preceding  de- 
cree for  appraisement,  and  no  others.] 

You  will  make  return  of  your  appraisement  by  the day 

of ,  a.  d.  18 — . 

Witness  my  hand  and  the  seal  of  said  court,  this day  of 

,  a.  d.  18—.  A.  C, 

LL-  s-]  Probate  Judge. 

1  §  6029.    See  par.  37,  chap.  5.  »  §  6284. 


116  SALE  op  ward's  property,     [chap.  6,  98-105. 

98.  If  no  dower  to  assign,  what  to  omit.  If  there  be  no  dower 
to  be  assigned,  all  the  above  relating  thereto  must  be  omitted; 
and  should  no  assignment  of  dower  be  required,  an  order  of  ap- 
praisement and  sale  may  be  made  at  the  same  time  by  the  court; 
and  in  that  case  the  report  of  the  appraisers  need  not  be  pre- 
sented for  confirmation  until  after  the  sale,  and  until  the  report 
of  sale  is  also  ready  to  be  submitted. 

99.  Oath  of  appraisers.  The  appraisers  must  take  an  oath  to 
truly  and  impartially  appraise  said  real  estate  at  the  fair  cash 
value  ;  and  this  oath  must  be  indorsed  on  the  certificate  of  their 
appointment,  or  order  of  sale  issued  by  the  court.1 

100-103.  Form  of  appraisers'  oath  may  be  as  follows . 
The  State  of  Ohio, county,  ss. 

G.  H.,  I.  J.,  and  K,  L.,  being  duly  sworn,  say  that  they  will 
truly  and  impartially  appraise  the  below  [or,  within]  described  real 
estate,  and  will  faithfully  and  impartially  discharge  all  the  duties 
enjoined  upon  them  by  law,  as  appraisers  of  the  real  estate  of 
C.  D.,  a  minor  ward,  under  an  order  of  the  probate  court  of  said 
county,  in  the  case  of  A.  B.,  guardian  of  said  C.  D.,  against  said 
C.  D.  and  others,  according  to  the  best  of  their  understanding 
and  ability.  &•  H.., 

I.  J-, 
K.  L. 

Sworn  to  and  subscribed  before  me,  this day  of ,  a. 

d.  18—.  L-  L., 

Justice  of  the  Peace  [or  other  proper  officer]. 

104.  How  appraisers  to  proceed.  The  appraisers  must  actually 
go  upon  the  premises,  when  about  to  perforin  their  duty,  being 
first  sworn  as  above  ;  and  if  dowei  is  to  be  assigned  in  several 
tracts,  it  may  be  set  off  all  in  one  tract,  or  in  the  several  tracts, 
as  the  appraisers  shall  think  proper.  When  assigned,  the  dower 
should  be  clearly  described  in  their  return,  so  that  any  one  with 
the  description  can  go  upon  the  land  and  find  the  boundaries 
of  the  dower,  or  be  able  distinctly  to  separate  it  from  the  re- 
mainder of  the  estate. 

105.  Dower  assigned  in  rents,  etc. — Where  no  division  can  be 

1  I  6284. 


CHAP.   6,   106-109.]       SALE  OF  WARD'S  PROPERTY.  1  17 

made  by  metes  and  bounds,  dower  must  be  assigued  in  a  special 
manner,  as  of  the  third  part  of  the  rents,  issues  and  profits,  to  be 
computed  and  ascertained  by  the  commissioners.1 

106.  Appraisers  duty  in  such  cases.  In  such  cases,  the  ap- 
praisers should  ascertain  and  report  to  court,  what  are  the  rents, 
issues,  and  profits  of  the  land,  clear  of  taxes,  reasonable  repairs, 
and  such  like  expenses.2  And  in  that  case,  too,  the  property 
should  then  be  appraised  subject  to  such  dower  incumbrance. 

107.  How  returned  to  court. — The  assignment  of  dower  and  ap- 
praisement should  be  attached  to  the  certificate  of  the  appoint- 
ment and  returned  to  the  court,  within  the  time  named  in  such 
certificate,  and  be  signed  by  the  appraisers. 

108-109.  Form  of  Appraisement  and  Assignment  of  Bower. 

(Here  is  the  most  appropriate  place  for  the  oath  of  appraisers, 
given  in  pars.  100-103;  then  add:) 

In  obedience  to  the  order  of  the  court  hereto  attached,  we,  the 
undersigned  appraisers,  being  first  duly  sworn,  and  upon  actual 
view  of  the  premises  described  in  said  order,  do3  (set  off  and  as- 
sign to  L.  D.,  widow,  etc.,  for  her  dower  estate  *  in  said  real 
estate,  so  much  thereof  as  is  contained  within  the  following 
bounds,  to-wit :  \Here  give  the  particular  description,  by  metes  and 
bounds ;  or  say,  if  the  case  be  so],  we  do  find  that  a  division  there- 
of can  not  be  made  by  metes  and  bounds,  and  do  therefore  set 
off  and  assign  to  said  L.  D.,  as  and  for  her  dower  therein,  the 

sum  of dollars  yearly,  during  her  life,  that  being  one-third 

of  the  net  annual  rents,  issues,  and  profits  of  said  real  estate,  as 
computed  and  ascertained  by  us.  And  we  do)  estimate  the  real 
cash  value  of  said  real  estate  (incumbered  by  said  dower,  so  assigned) 
at dollars.  (Signed  by  the  Appraisers.) 


1 1  5714,  as  am.  86  v.  185. 

2  In  Hillgartner  v.  Gebhart,  25  O.  S.  557,  the  court  held  that  "  one-third 
of  the  net  rents,  issues,  and  profits,  is  the  measure  of  the  dower  interest  in 
such  cases.  By  this  measure  the  doweress  is  compensated  for  '  one  full  and 
equal  third  part  of  all  the  lands,  tenements,  and  real  estate'  which  is  her 
primary  right.  The  net  rents,  issues,  and  profits,  are  equivalent  to  the  use 
of  the  estate.  In  ascertaining  the  net  rents,  the  expenses  of  reasonable  re- 
pairs and  taxes  should  be  deducted  from  the  gross  rents ;  but  no  deduction 
shoull  be  made  for  expenses  of  water  rent  or  insurance." 

See  also  Dunseth  v.  Bank,  6  O.  77,  79;  2  Scribner  on  Dower,  661,662; 
Hale  v.  Jones,  6  Johns  (N.  Y.),  258;  Riley  v.  Clamorgan,  15  Mo.  331; 
Beavis  v.  Smith,  11  Ala.  32. 

3  See  par.  110,  next  page. 


118  SALE    OF   WARD'S    PROPERTY.  [CHAP.  G,  110-118. 

110.  If  there  be  no  dower  to  be  assigned,  the  above  form  can 
be  used,  leaving  out  all  the  matter,  as  to  dower,  within  the  par- 
entheses. 

111.  When  several  tracts  are  described  in  the  petition,  and 
dower  is  assigned  in  one  tract  for  all,  the  preceding  form  may- 
be used  to  the  *,  and  then  continue  as  follows:  '-in  all  the  real 
estate  mentioned  in  said  petition,  the  following  described  tract 
(or  tracts)  to-wit :  [Here  describe  the  dower.']  And  we  do  ap- 
praise the  value  of  said  several  tracts  as  follows  :  The  one  con- 
taining   acres,  in  which  dower  has  been  assigued,  and  sub« 

ject  to  and  incumbered  by  said  dower,  at dollars;  the  one 

containing  acres,  which  is  not  incumbered  by  dower,  at 

dollars."  etc. 

112.  Guardian  to  execute  additional  bond  before  sale. — Upon 
the  appraisement  of  said  real  estate  being  filed,  signed  by  the 
appraisers,  the  court  must  require  the  guardian  to  execute  a 
bond,  with  sufficient  freehold  sureties,  payable  to  the  state  in 
double  the  appraised  value  of  such  real  estate,  with  condition 
for  the  faithful  discharge  of  his  duties,  and  the  faithful  payment 
and  accounting  for  of  all  moneys  arising  from  such  sale  accord- 
ing to  law.1 

113-118.  Form  of  Journal  Entry  approving  Appraisement,  Plat, 
and  Survey,  Widow's  Dower,  ordering  Guardian's  Bond,  etc. 

A.  B.,  guardian   of  CD.")  „  .  , 

'  °  I  Decree  approving  appraisers  report  in 

Said  C.  D.  and  others.       j     Proceedings  to  sell  ward's  lands. 

This  day  came  the  appraisers  heretofore  appointed  in  this 
case,  and  filed  their  report  herein  [say,  if  so,  including  the  survey 
and  plat,  heretofore  ordered  by  the  court,  of  the  lands  to  be  di- 
vided into  town  lots,  as  prayed  for  in  said  petition,  and  the  as- 
signment of  dower  to  L.  D.,  widow  of  E.  D.,]  all  of  which, 
being  examined,  the  court  finds  has  been  duly  made. 

It  is  thereupon  ordered  by  the  court  that  said  report  [includ- 
ing said  plat  and  survey],  be  approved  and  confirmed. 

*§  6285.     As  to  effect  of  not  giving,  in  Ohio,  see  notes,  p.  98 
A  sale  made  without  giving  such  bond,  held  to  be  void.     Ryder  v.  Flan- 
ders, 30  Mich.  330;  Stewart  v.  Bailey,  28  Mich.  251. 


CHAP.  (),  119-12li.]     SALE    OP    WARD'S    PROPERTY.  119 

[That  said  L.  £).,  widow,  hold  in  severalty  the"  lands  so  assigned 
and  set  oft"  to  her,  as  her  dower  estate  in  said  real  estate;  [or  if  an 
amount  of  money  is  assigned  to  her,  say],  and  thai  said  L.  D.,  widow, 

shall  receive  the  sura  of dollars  annually,  during  life,  as  and 

for  her  dower  estate  in  the  lands  in  the  petition  described,  and 
that  the  same  be  and  is  hereby  made  a  lien  and  charge  upon  said 
lands,  and  that  the  same  shall   be  payable  annually  [or  quarterly, 

etc.,  as  the  case  may  be],  on   the day  of ,   of  each   year 

during  her  life,  and  in  default  of  payment  thereof,  an  execution 
shall  issue  therefor  against  said  lands,  asupon  judgments  at  law.]* 

That  said  A.  B.  execute,  within  days,  to  the  State  of 

Ohio,  a  bond  with  sufficient  freehold  sureties,  to  the  acceptance 

of  the  court,  in  the  sum  of dollars  [double  the  amount  of  the 

appraised  value  of  the  real  estate],  conditioned  according  to  law. 

119.  If  no  dower,  what  to  do. — If  no  dower  is  assigned,  or  no 
plat  and  survey  made,  then  leave  out  of  the  above  form  all  matter 
relating  to  the  dower,  or  plat  and  survey,  or  both,  as  the  facts 
ma}-  require. 

120-126.  Form  of  Guardian's  Bond  where  Real  Estate  is  to  be  Sold. 

Know  all  men  by  these  presents,  that  we,  A.  B  ,  of county, 

Ohio,  P.   Q.,  of count}-,  Ohio,  and  E.  S,  of .county. 

Ohio  [or  if  all  of  same  county,  say  here,  all  of county,  Ohio, 

and  omit  accordingly],  arc  held  and  firmly  bound  unto  the  State  of 
Ohio,  in  the  sum  of dollars  [double  the  amount  of  the  ap- 
praised value  of  the  real  estate],  for  the  payment  of  which  we 
hereby  jointly  and  severally  bind  ourselves,  our  heirs,  adminis- 
trators, and  assigns  firmly  by  these  presents. 

Sealed  with  our  seals,  and  signed  at ,  this day  of , 

a.  d.  .     (See  note  1,  page  38.) 

The  condition  of  the  above  obligation  is  such,  that  whereas 
the  above  bound  A.  B.  was,  heretofore,  appointed  guardian  of  the 
person  and  estate  [or  of  the  estate  only,  if  such  be  the  case]  of  C. 

D.,  minor  child  of  E.  1>.,  deceased,  late  of [or,  then  living, 

if  such  was  the  case],  and  which  appointment  the  said  A.  B.  ac- 
cepted, and  gave  bond  and  made  the  oath  required  by  law.  And 
whereas  the  said  A.  B.,  as  such  guardian,  has  made  application 

to  the  probate  court  of  county,  Ohio,  for  an   order  to  sell 

certain  real  estate  of  his   said  ward,  which,  under  proceedings 


120  sale  of  ward's  property,     [chap.  6,  127-128. 

there  duly  had,  has  been  appraised  at  the  sum  of dollars; 

and  whereas  said  court  has  ordered  said  A.  B.,  as  guardian  as 
aforesaid,  to  execute  a  bond  as  such  guardian,  according  to  the 
statute  in  such  case  made  and  provided  : 

Now,  therefore,  if  the  said  A.  B.  shall  faithfully  discharge  his 
duties  as  guardian  of  said  C.  D.,  and  shall  faithfully  make  pay- 
ment and  account  for  all  moneys  arising  from  such  sale,  according 
to  law,  then  the  above  obligation  will  be  void;  otherwise  it  will 
be  and  remain  in  full  force. 

Signed,  sealed,  and  delivered  in  A.  B.,  [seal.] 

our  presence :  P.  Q.,  [seal.] 

J.  N.  E.  S.,  [seal.] 

V.  W. 

This  bond  approved  by  me,  this day  of ,  a.  d. . 

A.  C,  Probate  Judge. 

127.  Order  of  sale;  how  made. — Upon  such  bond  being  filed 
and  approved  by  the  court,  it  must  order  the  sale  of  such  real 
estate,1  at  auction,  for  not  less  than  two-thirds  of  the  appraised 
value  thereof,  providing  in  the  order  for  reasonable  notice  and 
the  place  of  such  sale  in  the  county  in  which  such  real  estate  is 
situate,  and  what  credit  to  be  given  for  the  payment  of  the  pur- 
chase-money.2 

128.  Deferred  payments  secured  by  mortgage. — The  deferred 
payments  of  the  purchase-money  must  be  secured  by  a  mortgage 
executed  by  the  purchaser  on  the  real   estate  sold,  and  they 

1  Where,  by  virtue  of  proceedings  and  an  order  of  sale  in  the  probate 
court,  a  guardian  sells,  at  public  sale,  and  conveys  the  land  of  his  ward,  but 
by  mistake,  such  proceedings,  order  of  sale,  and  conveyance  do  not  embrace 
all  the  land  that  was  intended  by  the  guardian  to  be  sold,  and  was  supposed 
to  be  bought  by  the  purchaser,  a  court  of  equity  will  not  interfere,  as  against 
the  minors,  to  correct  such  mistake,  and  to  give  to  the  purchaser  the  addi- 
tional land  intended  to  be  sold,  and  supposed  to  be  purchased,  but  which 
was  not  in  fact  sold  or  conveyed.     Dickey  v.  Beatty,  14  0.  S.  389. 

The  guardian's  deed  made  under  such  orders  of  the  court  has  usually  only 
the  effect  of  a  quitclaim,  except  so  far  as  he  may  have  covenanted  on  his 
part  that  he  has  complied  with  the  statute  requisites,  and  that  he  is  the 
guardian  duly  authorized;  and,  in  general,  he  can  not  bind  his  ward  by  any 
covenants  of  warranty  in  the  deed.     Schouler's  Dom.  Rel.  483. 

2  §6286. 

2  §  5404.     See  par.  30,  this  chapter. 


CHAP.  G,  129-14C]  SALE  op  ward's  property.  121 

must  bear  interest  at  the  legal  rate  per  annum  from  the  clay  of 
sale,  payable  annually.1 

129.  May  be  sold  at  private  sale,  when.— If  it  is  made  to  appear 
to  sueh  probate  court  that  it  will  be  more  for  the  interest  of  the 
ward  to  sell  such  real  estate  at  private  sale,  it  may  authorize  the 
guardian  to  sell  the  same  at  private  sale,  either  in  whole  or  in 
parcels,2  and  upon  such  terms  of  payment  as  may  be  prescribed 
by  the  court;  but  in  no  case  can  such  real  estate  be  sold  at  pri- 
vate sale  for  less  than  the  appraised  value  thereof.1 

130.  Decree,  etc.,  when  town  lots  are  laid  out. — If  the  petition 
includes  an  application  for  the  laying  out  into  town  lots  of  the 
land  to  be  sold,  or  any  part  thereof,  and  the  court  approve  the 
survey  and  plat  made  for  that  purpose,  the  court  must  also  au- 
thorize the  guardian,  on  behalf  of  his  ward,  to  sign,  seal,  and 
acknowledge  the  plat  in  that  behalf  for  record  according  to  law.1 

/ 

131-146.  Form  of  Decree  for  Sale. 

county,  Ohio,  ss.,  Probate  Court. 

A.  B.,  guardian  of  C.  D,)^  .         ,    . 

ys>  !  Decree  for  sale  in  proceedings  to  sell 

Said  C.  V.,  and  others,     j      lan(l 

This  cause  coming  on  this  day  further  to  be  heard,  and  it  ap- 
pearing to  the  court, 

That  the  appraisement  hereto  ordered  has  been  made  and  con- 
firmed by  the  court ; 

That  said  A.  B.,  guardian,  the  plaintiff  above  named,  has 
given  bond  in  double  the  amount  of  said  appraisement,  with 
P.  Q.  and  E.  S.  as  sureties,  conditioned  as  provided  by  law,  and 
which  bond  is  approved  by  court. 

[Here,  say,  if  so~\  That  it  has  been  made  to  appear  upon  satis- 
factory evidence  to  the  court,  that  it  would  be  more  for  the  inter- 
est of  said  ward  to  sell  the  lands  described  in  the  petition  in  this 
cause,  in  parcels  [or,  in  whole.] 

1 1  6286.     See  paragraphs  177,  178,  this  chapter. 

"Sheriffs,  administrators,  and  guardians  making  public  sale  of  lands, 
may,  in  their  discretion,  divide  a  tract  levied  upon  and  appraised  entire,  and 
sell  in  parcels,  being  responsible  for  the  abuses  of  that  discretion.  Stall 
».  Macalester,  9  0.  19. 


122  BALE  OP  WARD'S  PROPERTY.  [dlAP.  G.  147. 

It  is  therefore  ordered, by  the  court: 

That  the  petitioner  proceed  to  sell  the  lands  in  the  petition  de- 
scribed. 

[If  private  sale  is  ordered,  here  order.~\ 

That  the  petitioner  may  sell  lands  at  private  sale,  at  not  less 
than  the  appraised  value  thereof,  in  parcels.  [If  so,  and.  in  such 
case,  omit  the  two  next  succeeding  paragraphs,  unless  advertisement 
of  notice  is  nevertheless  desired.'] 

That  the  petitioner  shall  give   notice  weeks  [or,  days] 

consecutively,  of  the  terms  and  time  and  place  of  sale,  prior 
thereto,  in  some  newspaper  printed  and  of  general  circulation 

in  county,  Ohio  [the  county  where  the  lands  lie ;  or  the  court 

may  name  the  newspaper,  and  if  none  be  printed,  in  that  county, 
then  the  court  may  order  the  notice  to  be  given  in  some  paper  of  gen- 
eral circulation  in  that  county,  or  by  hand-bills,  or  both,  or  in  any 
other  way  the  court  may  think  proper, .]* 

That  said  sale  shall  be  at  public  auction,  at  the  door  of  the 

court-house  of county  [the  county  where  the  lands  lie,  or,  on 

the  premises]. 

That  said  sale  shall  be  for  one-third  cash  in  hand  on  the  day 
of  sale,  one-third  in  one,  and  one-third  in  two  years  from  the 
day  of  sale  [or  such  other  terms  as  the  court  think  proper]  ;  the  de- 
ferred payments  to  be  secured  D3-  a  mortgage,  executed  by  the 
purchaser  to  the  said  C.  D.,  on  the  premises  sold,  and  to  bear  in- 
terest at  the  rate  of per  centum  per  annum,  from  the  day 

of  sale,  payable  annuall}'. 

That  said  A.  B.,  guardian,  is  hereby  authorized,  on  behalf  of 
Scdd  C.  D.,  his  ward,  to  sign,  seal,  and  to  acknowledge  the  plat  of 
the  sub-division  of  lands  into  town  lots,  heretofore  approved  by 
court,  for  record  according  to  law. 

That  the  petitioner  make  return  of  his  proceedings  herein  im- 
mediately after  such  sale  is  made  [or  the  court  may  fix  a  day  for 
the  return  to  be  made]. 

147.  When  decree  for  private  sale  may  be  made. — Should  the 
foregoing  decree  for  sale  be  made  without  any  reference  to  a 
private  sale,  and  it  should  at  any  time  afterward  be  made  to  ap- 


1  As  to  manner  of  notice,  when   not    provided   by  statute,  see  par  37, 
this  chapter. 


CHAP.  6,  148-157.]  SALE  of  ward's  property.  123 

pear  that  such  private  sale  ought  to  be  had,  the  findings  and 
order  of  the  court,  relating  to  private  sale,  in  the  preceding  de- 
cree, may  be  made  as  a  separate  decree. 

148.  How  decree  for  private  sale  obtained. — The  method  usually 
adopted  for  satisfying  the  court  that  a  private  sale  would  best 
subserve  the  interests  of  the  ward,  is  to  procure  the  affidavits  of 
at  least  three  men  of  good  character  and  recognized  good  judg- 
ment, living  in  the  vicinity  of  the  land,  or  for  other  reasons 
presumed  to  know  the  facts  and  needs  of  the  case,  though  the 
judge  exercises  his  discretion  about  this,  and  may  act  on  the 
application  of  the  guardian  alone.  Such  application  may  be  as 
follows : 

149-152.  Form  of  Application  to  Sell  Real  Estate  at  Private 

Sale. 

,  county,  Ohio,  ss.,  Probate  Court. 

A.  B.,  guardian  of  C.  D~, ") 

vs.  v  Application  to  sell  land  at  private  sale. 

Said  C.  D.  and  others.    ) 

The  undersigned  applicant  represents  that  it  would  be  best  for 
the  interest  of  the  said  A.  B.,  to  sell  the  real  estate  described  in 
the  petition  in  this  cause,  at  private  sale,  for  the  following  rea- 
sons.    [Here  give  the  reasons.-] 

The  applicant  therefore  asks  for  an  order  authorizing  him  to 
sell  said  real  estate  at  private  sale. 

A.  B.,  Guardian  as  aforesaid. 

153-157.  May  be  sworn  to — Form  of  oath. — The  facts  in  the 
foregoing  application  may  be  sworn  to,  if  desired,  as  follows,  and 
such  application  would  then  have  the  force  of  an  affidavit : 

The  State  of  Ohio, county,  ss. 

A.  B.,  being  duly  sworn,  says  that  the  various  matters  set 
forth  in  the  foregoing  application  are  true,  as  he  verily  believes. 

A.  B. 

Sworn  to  and  subscribed  before  me,  this day  of ,  a 

d.  18—.  A.  C,  Probate  Judge, 

[seal.]  [or  other  proper  officer.] 


124  SALE  OF  WARD'S  PROPERTY.    [CFiAP.  6,  158-170 

158-160.  The  form  of  affidavit  for  private  sale,  mentioned  in 
paragraph  148,  may  be  as  follows  : 

The  State  of  Ohio, county,  ss. 

D.  E.,  being  duly  sworn,  says  that  *  he  has  read  [or,  has  heard 
read  ;  or,  that  he  knows  the  facts  set  forth  in]  the  application  to 
which  this  affidavit  is  annexed;  that  he  has  no  interest  whatever 
in  the  matters  therein  referred  to,  and  that  it  will  be  more  for 
the  interest  of  the  said  C.  D.  to  sell  said  land  at  private  sale,  as 
he  verily  believes.  D.  E. 

Sworn  [or,  affirmed]  to  and  subscribed  before  me,  this day 

of ,  a.  d.  18—. 

N.  E.,  Notary  Public, county,  Ohio. 

161-165.  Another  form. — Three  or  more  affidavits  similar  to 
the  above,  may  be  combined  into  one.  in  form,  as  follows  : 

State  of  Ohio, county,  ss. 

D.  E.,  G.  H.,  I.  K.,  and  L.  M  ,  being  duly  sworn,  each  for  him- 
self says  that  [and  continue  from  the  *  exactly  as  above  to  the  sig- 
natures.    Each  affiant  must  then  sign  his  name,  as  follows :] 

D.  E., 
G.  H, 
I.  K, 
L.  M. 

Sworn  [or,  affirmed]   to  and  subscribed  before  me,  this 

day  of .  a.  d.  18 — . 

N.  E.,  Notaxy  Public, county,  Ohio. 

166.  Precipe  for  order  of  sale. — Upon  request,  in  writing,  of 
the  guardian,  the  probate  judge,  or  clerk  of  the  court  of  common 
pleas,  will  issue  the  order  of  sale,  which  will  be  simply  by 
giving  the  guardian  a  copy  of  the  order,  duly  certified  to  as 
being  a  correct  copy  of  the  journal  entry. 

167-170.  Form  of  Precipe  for  Order  of  Sale. 
count}-,  Ohio,  ss.,  court. 


A.  B.,  Guardian  of  C.  D., ")  „      .      .  ,       .      7    .  ,. 

f  Precipe  for  order  of  sale  in  proceedings 

0.  D.,  and  others.        j      ^  sell  land. 
Issue  the  order  of  sale  in  this  case. 

A.  B.,  Guardian  of  C.  D. 


CHAP.  6,  171-177.]  SALE  OP  ward's  property.  125 

171.  Notice  of  sale.— When  the  guardian  has  fixed  upon  a  time 
when  he  will  offer  the  property  for  sale,  he  should  advertise  the 
time,  place,  and  terms  of  sale,  in  accordance  with  the  order  of 
court. 

172-175.  Form  of  Notice  of  Sale. 

guardian's  sale. 

In  pursuance  of  an  order  of -the  probate  court  of county, 

Ohio,  made  on  the  day  of ,  a.  d. ,  in  the  case  of 

A.  B.,  guardian  of  C.  D..  against  his  ward,  the  undersigned  will, 

on  the day  of ,  a.  d. ,  at  12  o'clock  [or  any  other 

hour  named'],  at  the  door  of  the  court  house,  in county  [or, 

on  the  premises,  as  the  court  may  order],  offer  at  public  sale,  the 

following    described  real  estate,  situate  in  county,  Ohio, 

to- wit    [Sere  describe  it.] 

Terms  of  sale,  one-third  cash  on  the  day  of  sale,  one-third  in  one 
and  one-third  in  two  years  from  the  day  of  sale,  to  be  secured 
by  mortgage  on  the  premises  sold,  and  the  deferred  payments 
to  bear  interest  at  the  rate  of  6  per  centum  per  annum,  payable 
annually  [or  otherwise,  as  the  court  may  have  directed]. 

Appraised  at  $ . 

A.  B.,  Guardian  of  C.  D. 

176.  Where  sale  must  be  made. — All  sales  of  lands  under  order 
of  sale  must  be  made  at  the  court  house  of  the  county  in  which 
the  land  is  situate,  unless  otherwise  ordered  by  the  court; '  but, 
as  a  general  rule,  it  will  be  for  the  interest  of  the  ward  to  sell 
the  land  on  the  premises. 

177.  Guardian  may  subdivide  and  sell — his  risk  in  so  doing. — 
If  the  lands  are  in  one  entire  tract,  and  appraised  as  such,  the 
guardian  may,  in  his  discretion,  subdivide  the  tract,  and  sell 
such  subdivisions  separately  ;  but  in  that  case,  the  whole  together 
must  sell  for  two-thirds  of  the  appraised  value  of  the  entire 
tract,2  else  the  sales  will  be  all  set  aside;  and  the  court  may  set 
them  aside,  at  the  costs  of  the  guardian  himself.  Or,  if  any  of 
such  sales  were  confirmed,  and  the  result  of  all  the  sales  together 
should  prove  to  be  less  than  two-thirds  the  appraised  vale  of  the 


4  5404 

3  Stall  v.  Macalister,  9  0.  19;  see  same,  p.  24. 


126  SALE    OF    WARD'S   PROPERTY.    [CHAP.  6,  178-180. 

entire  tract,  the  guardian  would  probably' be  held  bound  for  any 
loss  occasioned  to  his  ward  thereby. 

178.  Best  to  get  order  of  court. — If  it  is  deemed  advisable  to 
subdivide  the  entire  tract,  it  is  far  better  to  have  an  order  of 
court  specially  authorizing  it.  when  the  appraisement  is  ordered, 
and  then  let  the  subdivisions  be  appraised  separately. 

179.  How  sale  conducted. — The  sale  should  be  made  by  the 
guardian,  by  a  professional  auctioneer,  or  other  person  as  may 
seem  besl  for  the  interests  of  the  ward  ;  and  alter  having  dwelt 
a  sufficient  length  of  time  to  be  assured  that  no  more  bids  can 
be  had,  it  should  be  struck  off  to  the  highest  bidder,  if  he  offers 
two-thirds  or  over  of  the  appraised  value. 

180.  Appraisers,  etc.,  can  not  buy. —  Purchases  of  real  or  per- 
sonal property,  by  the  officer  making  sale  thereof,  or  by  an  ap- 
praiser of  such  property,  will  be  considered  fraudulent  and  void; 
but  this  section  does  not  affect,  unless  for  fraud,  sales  by  execu- 
tors,  administrators,   or  guardians,    prior  to    March  29,   1841.1 

1  \  5404.     See  also  paragraphs  49,  50,  chap.  5,  and  notes  thereto. 

An  appraiser  of  land  at  an  administrator's  sale,  stands  in  such  a  relationv 
that  his  purchase,  although  without  actual  fraud,  will  be  set  aside,  in  equity, 
at  the  instance  of  the  heirs.  1838.  Armstrong  v.  Huston's  Heirs,  8  0. 
551. 

The  principle  of  equity  which  prevents  those  from  acquiring  a  title,  to 
whose  discretion  or  agency  the  management  of  a  sale  is  confided,  applies 
not  only  to  trustees,  executors,  attornej'S,  and  agents,  but  to  every  person 
to  whose  integrity  or  judgment  is  committed  the  execution  of  any  step 
needful  in  making  the  sale.     lb.  554. 

Fullness  of  price,  absence  of  fraud,  and  fairness  of  purchase  are  not  suffi- 
cient to  countervail  this  rule  of  policy.  To  give  it  effect,  it  is  necessary  to 
recognize  a  right  in  the  former  owner,  to  set  aside  the  sale  in  all  cases,  on 
repayment  of  the  monej-  advanced.     lb. 

In  proceedings  in  partition,  an  appraiser,  in  the  absence  of  fraud,  prior 
to  the  act  of  March  29,  1841  (1  Curwen,  793),  might  become  a  purchaser 
at  the  sheriff's  sale.  The  rule  of  policy  applied  in  the  case  of  Arm- 
strong v.  Huston,  8  O.  552,  is  a  rigorous  one,  and  will  not  be  extended  to  a 
case  not  strictly  in  point. 

Applies  also  to  attorneys  in  a  case  (see  second  paragraph  of  this  note, 
also,  Wade  v.  Pettibone,  11  O-  57). 

In  such  proceedings,  the  acts  of  the  guardian  of  a  minor,  done  in  good 
faith,  are  binding  upon  his  ward. 

Where  a  minor,  in  such  case,  on  arriving  at  full  age,  ratifies  the  acts  of 


CHAP.  6,  181-182.J    SALE  op  ward's  property.  127 

181.  Report  of  sale — confirmation  ami  ieed. — Upon  the  return 
day  of  the  order  of  sale  issued  by  the  court,  such  guardian  must 
make  a  report  of  the  sale  by  him  made;  whereupon,  the  court, 
on  being  satisfied  that  such  sale  was  fairly  and  legally  made, 
must  confirm  the  same,  and  order  the  petitioner  to  execute  a 
deed  of  conveyance  for  the  real  estate  so  sold,  upon  the  pur- 
chaser securing  the  deferred  payments  of  the  purchase  money  in 
the  manner  prescribed  in  paragraph  128. 1 

182.  If  no  sale  made,  what  to  do. — And  if  no  sale  is  madt-,  for 
want  of  bidders,  or  other  cause,  a  return  of  that,  fact  should  be 

made  on  the  order  of  sale  issued  ;  for  every  order  of  sale  issued, 

— 1 ■ 

his  guardian,  by  receiving  and  appropriating  the  proceeds  of  the  sale,  with 
full  knowledge  of  the  facts,  he  is  estopped  in  equity  from  taking  advantage 
of  a  mere  irregularity  in  the  proceedings.  1846.  Bohart  v.  Atkinson,  14 
O.  228. 

A  purchase  of  real  estate  at  a  judicial  sale,  by  one  who,  at  the  appraise- 
ment under  which  such  sale  was  made,  served  as  an  appraiser,  is  not,  under 
the  provisions  of  section  441  of  the  code  [now  #  5404].  strictly  void,  but  is 
voidable  only;  and  will  "  be  considered  fraudulent  and  void"  only  on  an 
interposition  or  proceeding  by  a  party  in  interest  directly  for  the  purpose  of 
avoiding  such  sale.     1862.     Terrill  v.  Auchauer,  14  0.  S.  80. 

Section  441  of  the  code,  provides  that  "  no  sheriff' or  other  officer  making 
the  sale  of  property,  either  personal  or  real,  nor  any  appraiser  of  such 
property,  shall,  either  directly  or  indirectly,  purchase  the  same;  and  every 
purchase  so  made  shall  be  considered  fraudulent  and  void."  Held,  that  a 
purchase  by  an  appraiser  was  not  strictly  void,  but  voidable  only,  and  will 
be  "considered  fraudulent  and  void"  only  on  an  interposition  or  pro- 
ceeding by  a  party  in  interest  directly  for  the  purpose  of  avoiding  the 
sale.     lb. 

1§6287. 

The  report  should  show  that  be  in  all  respects  complied  with  the  require- 
ments of  the  law  and  the  order  of  the  court,  in  giving  notice,  in  offering  the 
premises  at  the  time  and  place  mentioned  in  the  notice,  and  in  the  time 
allowed  for  the  payment  of  the  purchase  money.  It  is  not  sufficient  that 
the  report  state  generally  that  notice  was  given  and  the  sale  made  according 
to  law  ;  but  must  set  forth  particularly  how,  and  for  what  length  of  time 
the  notice  was  given  ;  and  when  and  where  the  property  was  offered  ;  to- 
gether with  the  terms  of  sale,  and  whether  the  same  were  complied  with 
by  the  purchaser.  It  is  the  province  of  the  court,  and  not  of  the  executor 
or  administrator,  to  say  whether  his  proceedings  were  according  to  law. 
Raff's  Guide,  pp.  150-1. 

The  foregoing  extract  relates  to  the  report  of  sale  by  executors  and  ad 
ministralors,  but  it  is  equally  applicable  to -reports  of  guardian's  sales. 


128  SALE    OF    WARD'S    PROPERTY.    [CHAP.  6.  183-188. 

is  noted  on  the  execution  docket,  and  it  is  important,  in  order  to 
make  a  clear  record,  that  every  order  of  sale  should  be  returned 
to  the  court  whence  issued,  whether  it  has  been  acted  upon  or 
not,  and  with  the  action,  if  any  was  had,  and  why  not,  if  none 
was  had. 

183-185.  Form  of  return  to  an  Order  of  Sale,  when  a  Sale  has  been 

made. 

In  obedience  to  the  within  [or,  attached]  order,  I  dulj-  adver- 
tised the  real  estate  therein  described  for  sale,  for consecu- 
tive weeks  [or,  days]  before  the  day  of  sale,  in  ,  a  newspaper 

published  and  of  general  circulation  in  said  county,  stating  in 
in  said  notice  the  time,  place,  and  terms  of  said  sale  ;  and  on 

the day  of ,  a.  d.  ,  I  attended,  at  the  door  of  the 

court  house,  of  said  county  [or,  on  the  premises,  as  the  order 
directs],  at  the  hour  of  —  o'clock,  that  being  the  time  and 
place  specified  in  said  notice  for  said  sale,  and  then  and  there,  at 
public  auction,  offered  said  real  estate  [subject  to  the  dower 
estate  of  L.  D.,  therein,  if  so],  when  H.  S.  offered  for  the  same 

the  sum  of dollars,  which,  being  the  highest  and  best  bid 

that  was  offered,  and  more  than  [or,  equal  to]  two-thirds  of  the 
appraised  value  of  said  premises,  I  then  and  there  sold  the  same 
to  him  [subject  to  said  dower  estate,  if  so],  for  that  sum. 

Terms  of  Sale — One-third  of  the  purchase  money  to  be  paid 
in  hand,  one-third  in  one  year,  and  one-third  in  two  years  from 
day  of  sale,  with  interest  on  the  two  deferred  paj-ments,  said  de- 
ferred payments  to  be  secured  by  mortgage  on  the  premises  sold 

A  copy  of  said  notice,  with  proof  of  publication,  is  hereto  at 

tached  and  filed.     Dated  this day  of .  a.  d.  18 — . 

A.  B..  Guardian  of  C.  D. 

186.  Attached  copy  of  notice,  etc. — A  copy  of  the  notice  should 
be  attached  to  the  order  issued,  and  returned  with  it,  with  an 
affidavit  of  its  due  publication. 

187-8.  Forms  of  the  Affidavit  proving  the  Publication  of  the  No- 
tice of  salt 
State  of  Ohio, county,  ss.  : 

X.  Y.,  being  duly  sworn,  says  that  ho  is  the  publisher  [or,  fore- 
man, or  otherwise,  as  may  be]  of  the ,  a  newspaper  printed* 


CHAP.  6,  189-197.]  SALE  of  ward's  property.  129 

and  in  general  circulation  in   said  county,  and  that  a   notice,  of 
which  the  annexed  is  a  true  copy,  was  published  in   said  paper 

on day  of  each  week  for consecutive  weeks,  beginning 

on  the day  of ,  18 — . 

189-192.  If  said  paper  be  a  daily,  the  following  may  be  added  : 

Affiant  further  says  that  a  daily  and  weekly  edition  of  said 
newspaper  is  published  ;  that  said  notice  appeared  in  the  daily 
edition  ;  that  the  circulation  of  the  daily  in  said  county  exceeds 
that  of  the  weekly,  and  that  the  cost  of  publication  in  the  daily 
does  not  exceed  that  in  the  weekly. 

Sworn  [or,  affirmed]  to  and  subscribed  before  me,  this  

day  of ,  18—.        S.  C,  Notary  Public county,  Ohio. 

193-4.  "When  the  affidavit  is  made  by  the  guardian,  the  fore- 
going may  be  altered  as  follows.  A  copy  of  the  notice  must  be 
attached  to  the  affidavit  in  either  case: 

A.  B.,  being  duly  sworn,  says  that  the is  a  newspaper 

printed  [and  conclude  as  above  after  the*~\. 

195.  If  no  neivspaper  in  the  county. — If  no  newspaper  is  pub- 
lished in  the  county  where  the  petition  is  filed,  the  court  should 
point  out  the  mode  of  advertising  the  sale  in  the  order  of  sale, 
in  which  case  all  the  foregoing  must  be  modified  accordingly. 

196.  When  not  sold  for  want  of  bidders. — The  law  in  the  chap- 
ter on  guardians  does  not  direct  what  course  to  pursue  when  the 
land  can  not  be  sold  for  want  of  bidders;  but  in  such  case,  no 
doubt,  the  law  stated  in  paragraph  30  would  govern,  and  this 
would  necessitate  action  under  section  5416,  which  is  as  follows  : 

197.  ':  When  real  estate,  taken  on  execution  and  appi\aised, 
and  twice  advertised  and  offered  for  sale,  remains  unsold  for 
want  of  bidders,  the  court  from  which  the  execution  issued  shall, 
on  motion  of  the  plaintiff,  set  aside  such  appraisement,  and  order 
a  new  appraisement  to  be  made,  or  set  aside  such  levy  and  ap- 
praisement, and  award  a  new  execution  to  issue,  as  the  case  may 
require  ;  and  when  such  real  estate,  or  any  part  thereof,  has  been 
three  times  appraised  as  aforesaid,  and  thereafter  twice  adver- 
tised and  offered  for  sale,  and  then  remains  unsold  for  want  of 


130  SALE  op  ward's  property,  [chap.  6,  198-206. 

bidders,  the  court  may  direct  the  amount  for  which  the  same 
shall  be  sold." 

198.  Report  when  no  sale  is  affected;. — After  having  twice  adver- 
tised and  offered  the  land  for  sale,  as  directed  in  the  preceding 
paragraph,  the  guardian  should  make  the  following  report : 

199-203.  Form  of  Report,  Sale  not  made. 

County,  Ohio,  ss., court. 

A.  B.,  guardian  of  C.  D.,    )  „        .     .  7     .  ,. 

vs  L  Report  of  no  sale  in  proceedings  for 

Said  C.  D.  et  ah  )  sale  °f  lanrL 

In  pursuance  of  the  order  of  court  in  this  case,  I  gave  notice 
of  sale  by  publication  in  the ,  a  weekly  newspaper  of  gen- 
eral circulation  in  said  county  of ,  for  at  least  four  success- 
ive weeks  prior  to  the day  of ,  18 — ;  and  on  that  day, 

at  —  o'clock,  forenoon,  upon  the  premises,  in  accordance  with 
said  notice  of  sale,  I  offered  the  real  estate  in  the  petition 
described  for  sale,  subject  to  the  dower  estate  of  Y.  B.  therein  ; 
and  no  bids  being  offered,  said  premises  were  not  sold. 

I  thereupon  gave  notice  of  sale  by  publication  [and  continue 
as  already  stated  in  this  form~\. 

,  18 — .  A.  B.,  Guardian. 

204.  Form  of  order  of  reappraisement. — The  order  of  reap- 
praisement  may  be  as  follows  : 

205-6.  A.  B.,  guardian  of  C.  D.,  ^)  n   , 

vs  I  Order    of   reappraisement    in 

Said  C  D   et  al  \       proceedings  to  sell  land. 

On  motion  to  the  court  by ,  counsel  for  the  plaintiff,  and 

it  appearing  that  the  real  estate  described  in  the  petition  has 
been  twice  offered  for  sale  and  not  sold  for  want  of  bidders*,  it 
is  ordered  that  the  appraisement  heretofore  made  may  be  set 
aside,  and  that  said  premises  be  reappraised  by  the  oaths  of  D. 
H.,  O.  B.,  and  F.  S. ;  and  that  said  plaintiff  thereupon  proceed 
to  sell  said  premises  subject  to  such  reappraisement,  in  accord- 
ance with  the  former  order  of  this  court. 


CHAP.  6,  207-216.]    SALE  of  ward's  property.  131 

207.  Order  to  sell  at  a  fixed  price. — Follow  the  preceding  form 
to  the*,  then  proceed  as  follows  : 

208.  It  is  ordered  that  said  plaintiff  proceed  to  sell  said  prem- 
ises according  to  law,  and  the  previous  order  of  this  court,  at  a 
sum  not  less  than dollars. 

209.  Report  of  private  sale. — The  circumstances  being  so 
various  under  which  private  sale  might  be  ordered,  no  general 
form  can  well  be  given  ;  but  the  instructions  for  forms  of  report 
of  sale,  found  on  preceding  pages,  should  be  followed,  so  far  as 
applicable. 

210.  Affidavit  required  in  case  of  private  sale. — Before  the 
court  can  confirm  a  sale  by  a  guardian,  made  under  an  order 
allowing  such  officer  to  make  private  sale,  the  court  must  require 
such  officer  to  make  and  file  an  affidavit  that  such  private  sale 
has  been  made  after  diligent  endeavor  to  obtain  the  best  price 
for  the  property,  and  that  the  sale  reported  is  for  the  highest 
price  he  could  get  for  the  property.1 

211.  Form  of  affidavit,  etc. — The  affidavit  should  be  attached 
to  the  report  of  sale,  and  may  be  in  form  as  follows : 

212-215.  The  State  of  Ohio, county,  ss. : 

A.  B.,  being  duly  sworn,  says  that  the  private  sale  of  property, 
made  by  order  of  court,  as  represented  in  the  report  to  which 
this  is  attached,  was  made  after  diligent  endeavor  to  obtain  the 
best  price  possible  for  said  property,  and  that  the  sale  reported 
is  for  the  highest  price  that  he  could  get  for  said  property. 

A.  B. 

Sworn   to   and    subscribed  before  me,  this day  of , 

A.  d.  18 — .  A.  C,  Probate  Judge  [or  other  officer]. 

216.  Confirmation  of  sale.  When  any  return  is  duly  made  to 
the  court,  the  proceedings  should  be  examined  carefully  by  the 
court,  and  if  found  fair,  legal,  and  correct,  the  sale  must  be  con- 
firmed,2 and  a  deed,  and  mortgage,  if  required,  will  be  ordered. 

1§6412. 

2  6287. 

If  the  court  had  no  jurisdiction  to  make  such  sale,  it  will  be  void.  Perry 
v.  Brainard,  11  O.  442. 

If  guardian  dies  before  giving  deed,  his  successor  should  complete  the 
sale,  giving  deed.     Lynch  v.  Kirby,  36  Mich.  238. 


132  sale  ok  ward's  property,    [chap.  6,  '217-226. 

217-lD.    Form  of  Order  of  Confirmation. 
A.  B.,  guardian  of  C.  D.,|  0rder  0j  cmfirmatwn  in  proceedings  to 

Said  C.  D.  and  others.       ) 

This  day  this  cause  came  on  to  be  heard,  upon  the  motion  of  the 
petitioner  to  confirm  the  sale  made  in  obedience  to  the  order  hereto- 
fore made  in  this  case ;  and  the  court  having  carefully  examined 
the  proceedings  of  petitioner  upon  said  order  of  sale,  and  finding 
them  in  all  matters  correct,  and  being  satisfied  that  said  sale  was 
fairly  and  legally  made,  it  is  ordered  that  the  same  be,  and  it  is 
hereby  approved  and  confirmed,  and  it  is  further  ordered  that  the 
petitioner  make  a  deed  of  all  the  right,  title  and  interest  of  the  said 
C.  D.  in  and  to  said  lands  to  the  purchaser  named  in  the  petition- 
er's report  of  sale  herein,  upon  the  said  purchaser's  executing  to  said 
guardian  a  mortgage  upon  the  premises,  to  secure  the  deferred  pay- 
ments of  the  purchase  money,  with  interest  at  the  rate  of  six  per 
centum  per  annum,  payable  annually. 

And  it  is  further  ordered  that  the  petitioner  pay  the  costs  of  these 

proceedings,  taxed  at  dollars,  out  of  said  money  for  which 

said  land  was  sold,  within  days,  and  in   default  thereof,  that 

execution  issue  therefor  against  the  property  of  said  C.  D.,  as  upon 
judgments  at  law. 

220.  Entry,  if  liens  adjusted. — If  there  are  any  mortgages  or  other 
liens  to  be  adjusted,  the  journal  entry  must  of  course  be  modified, 
so  as  to  conform  to  the  findings  of  the  court  as  to  them,  and  to  any 
order  the  court  may  make  as  to  their  payment  out  of  the  money  for 
which  the  real  estate  was  sold. 

221.  Taxes,  etc.,  must  be  paid  out  of  proceeds. — Among  the  liens 
which  must  be  ordered  paid  out  of  the  proceeds  of  such  sale,  are 
taxes  and  penalties  that  may  be  due  against  the  land  sold.1 

222-229.   Guardian's  Deed. 
Know  all  men,  that,  whereas,  A.  B. ,  as  guardian  of  C.  D. ,  a  minor, 

on  the day  of ,  a.  d.  one  thousand  eight  hundred  and , 

filed  his  petiti*  >n  in  case  No. ,  in  the  probate  court  of county, 

Ohio,  against  said  C.  D.  (and  others,  if  so),  asking  upon  legal  cause 
therein  set  forth,  for  an  order  to  sell  the  following  described  real 
estate,  belonging  to  said  ward,  to  wit:  \_here  give  description  by  metes 
and  bounds,  or  of  he  noise,  as  in  tlie  petition. ] 

1  §  2854. 


chap.  6,  222-228.]  sale  of  ward's  property.  133 

And  whereas,  such  proceedings  were  afterwards  had  upon  said 

petition,  that,  on  the day  of ,  A.  d.  18—,  it  was  by  said 

court  ordered  and  adjudged  [here  give  substance  of  judgment  and  order 
of  court  to  sein. 

And  whereas,  on  the day  of ,  a.  d.  18 — ,  in  pursuance 

of  said  order  and  judgment,  an  order  of  sale  was  issued  out  of  said 
court,  under  the  seal  thereof,  directed  to  said  A.  B.,  guardian  as 
aforesaid,  commanding  him  to  execute  the  said  order,  and  of  the 
same,  together  with  his  proceedings  thereon,  to  make  due  return. 

And  whereas,  the  said  premises  having  been  duly  appraised  and 
advertised  according  to  law  and  the  order  of  the  court,  and  the  pro- 
visions of  the  statute  in  such  case  made  and  provided  having  been 
fully  complied  with,  the  said  A.  B.,  as  guardian,  as  aforesaid,  did, 

on  the day  of ,  a.  d.  18—,  at  the  door  of  the  court-house 

of  said  county  [or,  on  the  premises,  or  otherwise  state  where  the  sale  was 
made'],  expose  to  sale  at  public  auction,  the  said  above  described 
premises,  and  thereupon,  D.  M.  did  bid  for  the  same  [state  how 
much],  which  sum  being  the  highest  and  best  bid  for  the  same,  and 
two-thirds  [or,  more  than  two-thirds]  of  the  appraised  value  there- 
of, the  said  premises  were  then  and  there  struck  off  to  said  D.  M. 
for  the  sum  and  upon  the  terms  above  mentioned. 

And  whereas,  on  the day  of ,  A.  D.  18 — ,  the  said  court 

having  examined  the  proceedings  of  the  said  A.  B.,  guardian,  un- 
der said  order  of  sale,  and  being  satisfied  that  said  sale  was  made 
in  all  respects  according  to  law  and  the  order  of  the  court,  ordered 
that  said  sale  be  confirmed,  and  that  said  A.  B.,  guardian,  should 
execute  a  deed,  conveying  the  premises  so  sold,  to  said  D.  M. 

Now,  therefore,  the  said  A.  B.,  as  guardian  as  aforesaid,  in  con- 
sideration of  said  sum  of  $ ,  paid,  or  secured  to  be  paid  to  him 

by  said  D.  M.,  the  receipt  whereof  is  hereby  acknowledged,  and  by 
virtue  of  the  proceedings,  orders,  etc.,  aforesaid,  does  herebv  grant, 
bargain,  sell  and  convey  unto  said  D.  M.,  his  heirs  and  assigns  for- 
ever, the  said  real  estate,  so  as  aforesaid  sold  and  above  described : 
to  have  and  to  hold  the  same,  with  the  appurtenances,  to  the  said 
D.  M.,  his  heirs  and  assigns  forever,  as  fully  and  completely  as  said 
A.  B.,  as  guardian  as  aforesaid,  by  virtue  of  said  proceedings,  or- 
ders, etc.,  and  of  the  statute  in  such  case  made  and  provided,  may, 
can,  or  should  convey  the  same. 


134  sale  of  ward's  property,  [chap.  6,  230-238. 

In  witness  wnereof,  the  said  A.  B.,  as  guardian   as  aforesaid,  lias 

hereunto  set  his  hand  and  seal,1  the day  of ,  A.  D.,  one 

thousand  eight  hundred  and . 

Signed,  sealed,  and  acknowledged")  A.  B.     [seal.] 

in  presence  of  L.  M.,       >      A.s  Guardian  as  aforesaid. 

N.  O.        ) 

The  State  of  Ohio,  county,  ss. 

Be  it  remembered,  that  on  the day  of ,  a.  d.  18 — ,  be- 
fore me,  the  undersigned,  a  notary  public  [or,  mayor,  etc.']  within 
and  for  said  county,  personally  came  A.  B.,  as  guardian  of  C.  D., 
the  grantor  in  the  foregoing  deed,  and  as  such  acknowledged  the 
signing  and  sealing  thereof  to  be  his  voluntary  act  and  deed  for  the 
uses  and  purposes  therein  specified. 

In  testimony  "whereof,  I  have  hereunto  subscribed  my  name  and 
affixed  my  notarial  seal,  on  the  day  and  year  above  mentioned. 
Richard  Roe,  Notary  Public  as  aforesaid 

230.  To  whom  note  and  mortgage  given. — The  notes  and  mortgage 
for  deferred  payments  should  be  given  to  the  guardian  as  such. 

231-8.   Form  of  Mortgage. 

KNOW    ALL    MEN    BY    THESE    PRESENTS. 

That  H.  S.,  of county,  Ohio,  in  consideration  of  dol- 
lars [naming  here  the  entire  unpaid  part  of  the  purchase  price],  to  him 
paid  by  A.  B. ,  as  guardian  of  C.  D.,  a  minor,  the  receipt  whereof 
is  hereby  acknowledged,  does  hereby  grant,  bargain,  sell,  and  con- 
vey to  the  said  A.  B.,  guardian  as  aforesaid,  his  heirs'2  and  assigns 
forever,  the  following  described  real  estate,  situate  in  [here  fully  de- 
scribe the  real  estate  conveyed]  ;  and  all  the  estate,  title,  and  interest 
of  the  said  H.  S. ,  either  in  law  or  in  equity,  of,  in,  and  to  the  said 
premises  ;  together  with  all  the  privileges  and  appurtenances  to  the 
same  belonging,  and  all  the  rents,  issues,  and  profits  thereof;  to 
have  and  to  hold  the  same  to  the  only  proper  use  of  the  said  A.  B., 
as  truardian  as  aforesaid,  his  heirs  and  assigns  forever. 

And  the   said  H.  S.,  for  himself,  and  for  his  heirs,  executors, 

1  Private  seals  are  now  unnecessary  (see  £4,  80  0.  L.  79),  but  are  still 
occasionally  used  in  deeds,  etc.,  especially  by  the  older  lawyers  so  long  ac- 
customed to  tbem.  Being  mere  surplusage,  they  can  do  no  harm.  See  note 
1,  page  38,  as  to  seal  on  bond. 

2The  wurd  "heirs,"  not  "successors,"  must  be  used.     10  O.  1;  "W.  144. 


chap.  6,  238-239.]    sale  of  ward's  property.  135 

and  administrators^  does  hereby  covenant  with  the  said  A.  B., 
guardian  as  aforesaid,  his  heirs  and  assigns,  that  he  is  the  true 
and  lawful  owner  of  the  said  premises,  and  has  full  power  to 
convey  the  same  ;  that  the  title,  so  couveyecl,  is  clear,  free,  and 
unimcumbered  ;  and  further,  that  he  will  warrant  and  defend 
the  same  against  all  claim,  or  claims,  of  all  persons  whomsoever. 

Provided,  nevertheless,  that  if  the  said  H.  S.  shall  pay  or  cause 
to  be  paid  his  two  certain  promissory  notes  of  even  date  here- 
with lor dollars  each,  with  interest  thereon  from  date  till 

paid  at  six  per  cent,  per  annum,  payable  annually;  one  of  said 
notes  being  due  and  payable  one  year  after  date,  and  the  other 
two  j'ears  after  date,  each  to  the  order  of  A.  B.,  as  guardian  of 
C.  D.,  and  being  given  to  secure  the  unpaid  balance  of  the  pur- 
chase money  of  said  premises,  then  these  presents  shall  be  void. 

In  witness  whereof,  the  said  H.  S.  has  hereunto  set  his  hand 

and  seal,  this  day  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and . 

H.  S.     [seal.] 
Signed,  sealed,  and  acknowledged  in 
presence  of  us  :  T.  M., 

E.  0. 

The  State  of  Ohio,  county  of ,  ss. 

Be  it  remembered,  that  on  the  day  of ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  ,  before  me 

the  subscriber,  a  notary  public  [or  other  officer,  as  'may  be]  in  and 
for  said  county,  personally  came  H.  S.,  the  grantor  in  the  fore- 
going mortgage  deed,  and  acknowledged  the  signing  and  sealing 
thereof  to  be  his  voluntary  act  and  deed,  for  the  uses  and  pur- 
poses therein  mentioned. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name, 
and  affixed  my  notarial  seal,  on  the  day  and  year  aforesaid. 
[seal.]  K  E., 

Notary  Public  as  aforesaid. 

Sale  of  Lands  in  this  State  by  Foreign  Guardians. 

239.  Application  for  sale — security.— All  applications  for  sale  of 
real  estate  by  guardians  to  minors,  who  live  out  of  this  state, 
must  be  made  in  the  probate  court  of  the  county  where  the  lands 


136  sale  op  ward's  property,   [chap.  6.  240-246. 

are  situate;  and  if  situate  in  more  counties  than  one,  then  in  one 
of  the  counties  in  which  a  part  of  such  real  estate  is  situate;  and 
additional  security  will  he  required  of  such  guardian,  when 
deemed  necessary,  and  such  as  may  be  approved  by  the  probate 
court  of  the  county  in   which  such  application  is  made.1 

240.  The  proceedings,  in  case  of  a  foreign  guardian  making  ap- 
plication to  sell  real  estate  of  his  ward  lying  in  this  state,  will  be 
the  same  precisely  as  that  in  the  case  of  a  guardian  appointed 
here;  the  necessary  variations  in  the  forms  already  given,  to 
adapt  them  to  such  a  case,  can  be  readily  made. 

24 1 .  Order  of  court  for  security— form  of. — If  the  probate  court, 
in  which  such  application  of  a  foreign  guardian  is  made,  deems 
it  necessary  to  require  additional  security  to  that  already  given 
by  the  guardian,  in  the  state  or  county  where  he  was  appointed, 
an  order  of  court  should  be  made  so  requiring  it  after  the  ap- 
praisement is  made;  and  in  so  doing,  the  usual  order  made  after 
the  appraisement,  the  form  of  which  has  heretofore  been  given  in 
paragraphs  113-118.  may  be  used  To  the  *,  and  then  proceed  as 
follows  : 

242.  And  the  court  deeming  it  necessary  that  an  additional 
security  should  be  given  by  said  guardian,  it  is  therefore  further 

ordered,  that  the  said  A.  B.,  within  days,  execute  to  the 

State  of  Ohio,  a  bond  with  sufficient  freehold  sureties,  to  the  ac- 
ceptance of  this  court,  in   the  sum   of  dollars  [double  the 

amount  of  the  appraised  value  of  the  real  estate'],  conditioned  ac- 
cording to  law. 

243—46.  The  form  of  bond  will  be  like  that  already  given  in 
paragraphs  120-126,  but  the  condition  will  be  modified  thus: 

The  condition  of  the  above  obligation  is  such,  that  whereas 

the  above  bound  A.  B.,  has  heretofore  been,  by  the court  of 

county,  State  of  [or,  Dominion  of  Canada,  etc.,  as  the 

case  may  be~],  duly  appointed  and  qualified  as  guardian  of  C.  D., 

a  minor  child  of  E.  F.,  deceased,  late  of [or,  then  and  now 

living,  if  such  is  the  case],  and  which  appointment  the  said  A.  B. 
accepted,  and  is  still  authorized  to  act  under;  and  whereas  the 
said  A.  B..  as  such  guardian,  has  made  application  to  the  probate 

court  of county,  Ohio,  for  an  order  to  sell  certain  real  estate 

of  his  said  ward,  situate  in  the  county  of ,  Ohio,  and  which 

!§  6290.     See  par.  1,  chap.  25. 


chap.  G,  247-251]  sale  op  ward's  property.  137 

is  particularly  described  in  the  petition  of  said  application, 
which  real  estate,  under  proceedings  there  duly  had,  has  been 

appraised  at dollars;  and  whereas  said  court  has  ordered 

said  A.  B.,  as  guardian  as  aforesaid,  to  execute  a  bond  as  such 
guardian,  according  to  the  statute  in  such  case  made  and  pro- 
vided. 

Now,  therefore,  if  the  said  A.  B.  shall  faithfully  discharge  his 
duties,  as  guardian  of  said  C.  D.,  and  shall  faithfully  make  pay- 
ment and  account  for  all  moneys  arising  from  such  sale,  accord- 
ing to  law,  then  the  above  obligation  will  be  void,  otherwise  to 
be  and  remain  in  full  force. 

A.  B.,  [seal.] 
C.  D.,  [seal.] 
E.  F.,  [seal.] 

This  bond  approved  by  me,  this day  of ,  a.  d. -. 

A.  C,  Probate  Judge  of  said  county. 

247.  If  no  bond  be  given,  what  to  do. — In  case  the  foreign  guar- 
dian can  not  or  does  not  give  the  bond  required,  no  further  pro- 
ceedings can  be  had,  and  no  order  of  sale  can  be  made;  and  in 
such  case,  the  court  should  simply  dismiss  the  proceedings  at  the 
costs  of  the  guardian. 

248.  In  such  case,  if  it  be  necessary  still  to  sell  the  lands 
of  a  foreign  minor,  a  guardian  must  be  appointed  in  this  state, 
as  directed  in  chapter  3. 

249.  If  given,  what. — If,  however,  the  bond  be  given  by  the 
foreign  guardian,  and  approved  by  the  court,  then  the  mtitter 
will  proceed  as  heretofore  directed  in  other  cases. 

250.  If  bond  not  required. — If  no  bond  is  required  by  the  court, 
then  so  much  of  the  order  confirming  the  appraisement,  and  as* 
signment  of  dower,  if  dower  there  be,  as  relates  to  giving  a  bond 
will  be  omitted ;  and  in  that  case,  the  fact  that  no  further  bond 
is  deemed  necessary  by  the  court,  should  be  stated;  and  the 
order  of  sale  may  then  be  included  in,  and  follow  the  order  con- 
firming the  appraisement  and  assignment  of  dower. 

251.  Remedy  of  purchaser,  if  guardian's  sale  invalid. — The  stat- 
ute provides  that  if,  upon  the  sale  of  property  on  execution,  the 
title  of  the  purchaser  is  invalid  by  reason  of  a  defect  in  the  pro- 
ceedings, the  purchaser  imiy  be  subrogated  to  the  right  of  the 


138  sale  op  ward's  property,  [chap.  6,  252-254. 

creditor  against  the  debtor,  to  the  extent  of  the  money  paid  and 
applied  to  the  debtor's  benefit,  and,  to  the  same  extent,  will  have 
a  lien  on  the  property  sold,  as  against  all  persons,  except  bona 
fide  purchasers  without  notice;  but  this  will  not  be  construed 
to  require  the  creditor  to  refund  the  purchase  money,  by  reason 
of  the  invalidity  of  any  such  sales;  and  that  this  shall  apply, 
also,  to  all  sales  by  guardians.1 

252.  How  possession  gained  of  lands  sold  at  guardian's  sale. — 
Persons  occupying  lands  sold  at  guardian's  sale  may  be  evicted 
by  proceedings  before  a  magistrate,  in  the  manner  provided  in 
the  chapter  relating  to  Forcible  Entry  and  Detainer,  sections 
C599-6612.2 

253.  Kind  of  title  guardian's  sale  conveys. — As  in  other  judicial 
sales,  the  general  rule  is  that  the  guardian  sells  only  such  title  to 
the  land  as  the  ward  has,  and  the  purchaser  must  make  inquiry 
as  to  the  title,  and  the  authority  of  the  guardian  to  sell.  The 
guardian  makes  no  warranty,  and  if  he  does,  he  only  binds  him- 
self personally.8 

254.  As  to  application  of  purchase-money,  etc.,  see  notes  below.4 

255.  As  to  an&stral  property. — Any  fund  in  the  hands  of  any 
guardian,  or  any  other  such  trustee,  which  has  arisen  from  the  sale 
of  real  estate,  after  the  death  of  an  intestate  owner,  which  came  to 
such  intestate  by  descent,  devise,  or  deed  of  gift  from  an  ancestor, 
must  descend  as  is  provided  in  section  4158,  concerning  such  real 
estate.5     But  see  par.  67,  chap.  5. 

l?5  5410,  5411.  2g6600. 

8  Black  v.  Walton  (1877),  32  Ark.  321.     See  notes,  pp.  83,  120. 

+  "W.  E.,  guardian  of  the  estate  of  three  minors,  upon  a  sale  of  their  real 
estate,  took  the  notes  of  the  purchaser,  drawing  interest,  for  frhe  deferred 
payments,  payable  to  the  order  of  said  "YV.  R.,  guardian  of  A.  K.,  C.  K.,  and 
E.  K.,  and  secured  by  a  mortirase  on  the  real  estate  sold.  Held,  that  one 
who  buys  such  notes,  bearing  on  their  face  the  marks  of  a  trust  fund,  is  put 
upon  inquiry;  and  if  he  buys  them  from  the  guardian,  under  circumstances 
fairly  indicating  that  they  were  sold  against  the  interest  of  the  wards,  he 
gets  no  title  from  the  guardian  who  misappropriates  the  proceeds  of  the 
sale.     Strong  v.  Strauss,  40  0.  S.  87. 

The  statute  only  requiring  an  order  of  court  to  empower  a  guardian  to 
sell  in  case  of  real  estate,  the  sale  for  full  value,  by  a  guardian,  of  a  note  and 
mortgage  to  one  who  had  no  reason  to  suppose  that  the  guardian  would  mis- 
appropriate the  proceeds,  is  a  good  transfer,  and  the  buyer  need  not  look  to 
the  application  of  the  purchase  money  nor  to  the  necessity  of  a  sale.  (Ham. 
Dist.  Ct.)     Strong  v.  Hope,  4  Bull.  1034.     See  also  notes  on  pp.  83,  94,  96. 

5  §4163,  as  am.  87  O.  L.  66. 


CHAP.   7,  1,  2.]  LEASE  OF  WARD'S  LANDS.  139 


CHAPTER  7. 

LEASE  OF  WARD'S  REAL  ESTATE. 

Par.  Par. 

1.  Power  of  guardian   to   lease  for     14.  Proceedings  on  preliminary  hear- 

th ree  years.  ing. 

2.  Power  to  lease  for  fifteen  years  to     15.   Forms  of  appointment. 

save  property  from  sale.  1»'>.  Final  hearing  and  orders  thereon. 

3.  Application  for  power  to  make     17.  How   the   improvements  may  be 

such  lease.  made. 

4.  Who  may  unite  in  application.  18.  When  such   lease  extending   be- 

5.  Rule  as  to  parties,  and  notice.  yond  majority  shall  determine. 

6.  Dower.  19.  Lien  of  tenant  for  improvements. 
7-12.  Form  of  application.  20.  Certain  unlawful  lease. 

13.  Verification.  21-27.  As  Lo  leases  of  coal  lands,  etc. 

28-32.  As  to  leases  of  oil  lands,  etc. 

1.  Power  of  guardian  to  lease  for  three  years. — A  guardian  of 
the  person  and  estate,  or  of  the  estate  only,  of  any  minor  may 
lease  the  real  estate  of  his  ward  for  any  terra  not  exceeding  three 
years  and  not  extending  beyond  the  minority.1 

2.  Power  to  lease  for  fifteen  years  to  save  property  from  sale. — Such 
guardian  may  also  lease  the  real  estate  of  his  ward  for  any  term 
not  exceeding  fifteen  years,  although  such  term  extend  beyond 

1§6295. 

The  guardian  should,  of  course,  rent  his  lands  to  the  best  possible  ad- 
vantage, and  see  that  the  rent  money  is  well  secured;  he  should  see  that  the 
tenant  uses  the  lands,  houses,  etc.,  as  not  abusing  them;  that  the  premises 
are  kept  in  reasonably  good  repair,  without  extaordinary  expense.  See 
par.  72,  chapter  5,  as  to  repairs. 

A  guardian  leased  his  ward's  land  in  January,  several  years,  where  it  was 
customary  to  lease  lands  in  the  spring.  In  an  action  against  the  guardian 
it  was  shown  that  the  land  would  have  rented  for  more  money  in  the  spring 
than  in  January,  and  the  guardian  was  made  to  pay  the  difference  to  the 
ward.     Knothe  v.  Kaiser,  5  T.  &  C.  (N.  Y.),  4. 

A  guardian  is  not  liable  for  an  error  of  judgment  in  having  leased  the 
lands  of  his  wards  for  a  less  rent  than  could  have  been  obtained,  where  he 
acts  in  manifest  good  faith,  having  first  secured  the  approval  of  the  probate 
court.     McElheny  v.  Musick,  63  111.  329. 


140  LEASE  OF  WARD'S  LANDS.  [CHAP.  7,  3-12. 

the  minority,  whenever  the  court  appointing  him  finds,  on  his 
application,  that  such  lease  will  be  to  the  advantage  of  the  ward, 
and  is  necessary  to  secure  the  improvement  of  the  real  estate 
and  to  increase  its  rents,  and  that  such  increase  is  needed  for  the 
support  and  education  of  his  ward  or  to  pay  his  liabilities  or  any 
liens  on,  or  claims  against  his  estate,  and  that  by  such  lease  a 
sale  of  real  estate  for  these  purposes  may  be  prevented.1 

3.  Application  for  porter  to  make  such  lease. — Such  application 
must  be  by  petition,  which  must  contain  a  description  of  the  real 
estate  and  a  particular  statement  of  its  value  and  the  value  of  all 
other  property  or  effects  of  the  ward,  and  his  income  and  ex- 
penses, a  detailed  statement  of  the  improvements  proposed  and 
the  liabilities  or  expense  of  support  and  education  to  be  provided 
for,  the  rent  of  the  real  estate  as  it  is,  and  the  prohable  increase 
of  rent  if  the  improvements  are  made,  the  means  intended  to  be 
used  in  making  the  improvements  and  the  proposed  terms  and 
time  of  the  lease  ;  and  such  other  facts  as  shall  be  pertinent  to 
the  question  whether  the  authority  for  making  the  lease  should 
be  granted.2 

4.  Who  may  unite  in  application  — In  such  application  the 
guardian  may  act  on  behalf  of  two  or  more  wards,  and  two  or 
more  guardians  of  different  wards  may  unite,  when  all  the  wards 
are  jointly  or  in  common  interested  in  the  real  estate.3 

5.  Rules  as  to  parties  and  notice. — The  same  rules  apply  in  such 
matters  as  to  parties  and  notice  as  in  application  for  sale  of  real 
estate.3    (See  chapter  6.) 

6.  Dower. — The  widow's  dower  may  be  one  of  the  liens  on  the 
real  estate  of  a  minor,  but  as  probate  courts  have  jurisdiction, 
in  the  assignment  of  dower,  only  in  cases  of  sales  of  real  estate 
to  pay  debts.4  the  court  could  not,  in  a  proceeding  to  lease  the 
real  estate,  assign  such  dower,  and  it  seems  that  no  conflicting 
liens  could  be  adjusted  in  such  proceeding. 

7-12.  Form  of  a  implication. — The  petition  may  be  substantially 
as  follows,  varying  it  to  suit  the  number  of  guardians  or  wards, 
and  in  other  respects  as  the  facts  of  each  case  may  require: 

1§6296.  2  ?  6297.  3  §  6298.  4  See  par.  4,  chap.    6. 


CHAP.  7.]  LEASE   OP   WARD'S    LANDS.  141 

county,  Ohio,  ss.     Probate  Court. 


A.  B.,  as  guardian  of  C.  D.,  plaintiff, 
vs. 

Said  C.  D,  a  minor,  aged  10  years, 
h.  D.,  X.  Y.  [etc  ,  naming  all  per- 
sons whose  lights  this  application 
affects],  defendants. 


Petition  to  Lease  Ward's 
Land. 


Said  plaintiff  says  that  he  is  the  duly  appointed  guardian 
of  said  C.  D.,  minor;  that  said  minor  is  the  owner  in  fee 
simple  of  the  following  described  real  estate,  situate  in  the  city 
of  Cincinnati,  county  of  Hamilton,  and  State  of  Ohio,  to-wit: 
Lot  No.  [describe  it.  as  in  a  deed]  ;  that  said  lot  is  probably  worth 

dollars,  is  totally  unimproved,  and    produces   no  income 

whatever  [or,  if  improved  and  rented,  say,  that  the  gross  receipts 

derived  therefrom  for  the  past years  have  been  dollars 

per  year;  or,  state  the  income  for  each  year],  that  there  has  been 
expended  on  said  lot,  during  that  time,  amounts  as  follows:  for 
taxes, dollars;  for  street  improvement, dollars  ;  [if  im- 
proved, for  repairs, dollars  ;  etc.,  as  may  be]  ;  that  there  is  a 

mortgage  on  said  property  to  secure  a  note  of dollars,  given 

by  E.  D.,  the  father  of  said  C.  D..  during  his  life,  to  said  X.  Y., 
and  due  in  three  months  from  [state  when];  that  said  L.  D.,  widow 
of  said  E.  D.,  has  a  dower  interest  in  said  lot.  for  which  she  has 

agreed  in  writing  to  accept  dollars,  if  paid  within  three 

years  ;  that  there  are  no  other  liens  upon  said  lot. 

Plaintiff  further  says  that  said  C.  D.  has  other  property,  as 
follows :  [here  describe  his  property  as  directed  above,  each  piece 
separately,  if  necessary ;  or.  if  so,  says  that  said  C.  D.  has  no  other 

property]  ;  that  the  gross  annual  income  of  said  C.  D.  is  

dollars  [or.  for  the  past years  has  averaged dollars  per 

year];  that  his  expenses,  in  addition  to  the  taxes  [etc.]  above 

mentioned,  during  the  past years,  have  been,  for  clothing, 

dollars;  for  tuition  and  other  educational  expenses.  

dollars,  [etc.]  ;  being  an  average  of dollars  per  year;  that 

the  amount  of  said  expenses  per  year  will  increase  in  the  future 
by  reason  of  [state  why,  if  so.] 

Plaintiff  further  says  that  said  lot,  by  reason  of  its  location,  is 
valuable  for  business  purposes,  and  will  probably  become  more 
so  year  by  year ;  and  that  its  sale,  either  to  satisfy  said  mort- 


142  LEASE    OP    WARD'S    LANDS.  [CHAP.  7,  13-16. 

gage  or  for  the  assignment  of  said  dower,  will  be  extremely  dis- 
advantageous to  said  C.  D. ;  that  said  lot  can  be  leased  for  a 
period  of  twelve  years  to  G.  T.,  a  responsible  person,  upon  the 
following  terms.  Said  G.  T.  will  erect  thereon  a  [describe  the 
structure'],  which  would  be  a  permanent  improvement,  for  the 
purpose  of  carrying  on  therein  the  business  of  [state  what — or, 
here  state  such  facts  as  are  pertinent,  and  tend  to  show  that  the 
lease  should  be  made'],  and  will  pay,  during  said  twelve  years,  an 
annual  ground  rent  of dollars,  payable  semi-annually. 

Plaintiff  further  says  that  said  ground  rent,  together  with  the 
personal  property  above  mentioned,  would  be  sufficient  to  pay 
off  said  liens,  and  to  support  and  educate  said  C.  D.  ;  but  that  if 
said  lot  is  not  leased,  it  must  be  sold  to  satisfy  said  liens. 

Wherefore  plaintiff  Sprays  that  he  maybe  ordered  by  the  court 
to  lease  said  lot  upon  the  terms  and  conditions  above  specified, 
or  upon  such  other  terms  and  conditions  as  the  court  may  di- 
rect. A.  B.,  Guardian  as  aforesaid. 

13.  Verification. — This  petition  must  be  verified  in  the  same 
way  as  petition  on  page  102. 

14.  Proceedings  on  preliminary  hearing.— On  the  hearing,  the 
court  must  appoint  three  disinterested  freeholders  of  the  county 
in  which  the  real  estate  is  situate,  who  are  not  of  kin  to  the  pe- 
titioner, to  view  the  premises  and  report  under  oath  their  opin- 
ion of  the  probable  cost  of  the  improvements  proposed,  whether 
the  same  and  the  proposed  lease  would  be  for  the  best  interest 
of  the  ward  or  wards,  and  if  so,  upon  what  terms  the  lease  should 
be  made  ;  and  the  report  must  be  returned  on  or  before  a  day 
named  in  the  order  for  the  final  hearing  of  the  case.1 

15.  Forms  of  appointment. — The  forms  for  the  appointment  of 
the  freeholders  alluded  to  in  the  preceding  paragraph,  as  well  as 
of  their  oath,  report,  etc.,  can  readily  be  adapted  from  the  simi- 
lar forms  in  chapter  6. 

16.  Hearing  and  orders  thereon. — On  the  final  hearing,  if  the 
report  of  the  freeholders  be  in  favor  of  the  lease,  and  the  court 
be  of  opinion  that  it  will  be  to  the  advantage  of  the  ward  or  wards 
to  improve  and  lease  the  real  estate,  and  that  such  lease  is  neces- 
sary to  secure  the  improvements  and  increase  the  rents,  and  that 

1  g  6298. 


CHAP.  7,  17-21.]  LEASE,  OF    WARD'S    LANDS.  143 

such  increase  is  needed  for  the  support  and  education  of  the 
ward  or  wards,  or  to  pay  his  or  their  liabilities  or  liens  or  other 
claims  against  his  or  their  estate,  and  that  by  such  lease  a 
sale  of  real  estate  for  any  of  these  purposes  may  be  prevented, 
the  court  must  make  an  order  authorizing  the  lease  to  be  mad.0 
on  such  terms  and  in  such  manner  as  the  court  shall  think 
proper.1 

17.  How  the  improvements  may  be  made. — In  the  lease  made  in 
pursuance  of  such  order,  it  may  be  provided  that  the  improve- 
ments must  be  made  by  the  tenant  as  part  of  the  rent,  or  by  the 
guardian,  either  out  of  the  rent  or  other  means  of  the  ward  or 
wards,  as  the  court  may  have  directed.2 

18.  When  such  lease  extending  beyond  minority  shall  determine. — 
Any  lease  made  by  a  guardian  to  extend  beyond  the  minority 
must,  nevertheless,  determine  when  the  ward,  if  there  be  but 
one,  arrives  at  full  age,  or  if  more  than  one,  when  all  of  them 
arrive  at  full  age,  unless  such  ward  or  wards  then  confirm  the 
same;  and  in  case  of  the  death  of  the  ward,  if  there  be  but  one, 
or  of  all  of  them,  if  more  than  one,  the  lease  must  also  deter- 
mine, unless  the  legal  representatives  of  such  ward  or  wards 
confirm  the  same  ;  if  there  be  more  than  one  ward,  and  some, 
but  not  all,  die,  the  lease  will  continue  till  the  survivor  or  sur- 
vivors reach  full  age.3 

19.  Lien  of  tenant  for  improvements. — When  such  lease  is  de- 
termined by  reason  of  the  death  or  majority  of  the  ward  or 
wards,  the  tenant  will  have  a  lien  on  the  premises  for  any  sum 
or  sums  expended  by  him  in  pursuance  of  the  lease  in  making 
improvements,  and  for  which  compensation  shall  not  have  been 
made,  either  by  the  rent  or  otherwise.3 

.20.  Lease  of,  for  gambling  purposes  or  sale  of  liquor. — A  guard- 
ian, or  trustee  of  a  minor,  insane  person,  or  idiot,  renders  him- 
self liable  to  heavy  penalties  by  leasing  his  ward's  premises  for 
gaining,  or  for  the  sale  of  intoxicating  liquors  therein,  and  also 
by  permitting  these  things  to  he  done  in  the  premises.  See 
pages  01  and  224. 

21.  Minor  ward's  real  estate  may  be  leased  for  mining  purposes. — ■ 
The  guardian  of  the  person  and  estate,  or  estate  only,  of  any  minor, 
may  be  authorized  hy  the  probate  court  of  the  county  in  which  the 

1  \  G299.  2§6300.  3gti:J01. 


14-V/  LEASE    OF    WARD'S    LANDS.  [CHAP.    7,   22-2'). 

lands  are  situated,  to  lease,  upon  such  terms  and  for  such  period  of 
time,  not  exceeding  ten  years,  any  lands  in  such  county  belonging 
to  such  ward,  supposed  to  contain  coal,  for  the  purpose  of  mining 
for  and  removing  the  same.  But  if  said  period  of  ten  years  extend 
beyond  the  minority  of  such  ward,  such  lease  must  then  terminate 
as  to  such  ward,  unless  such  ward  confirms  the  lease.1 

22.  Petition;  time  for  hearing. — Upon  the  filing  of  such  petition, 
the  court  must  fix  a  time  for  hearing  it,  which  time  must  not  be 
less  than  five  nor  more  than  fifteen  days  from  the  filing  of  the  peti- 
tion, and  must  order  the  petitioner  to  give  notice  in  wiitiug  to  his 
ward,  who  must  be  defendant  to  said  petition,  of  the  filing  and 
prayer  thereof,  and  the  time  it  will  be  heard.  This  notice  must  be 
served  not  less  than  five  days  before  the  hearing.  He  must  return 
to  the  court  a  copy  of  said  notice,  stating  the  time  and  manner  of 
service  thereof."  For  adaptable  forms,  see  paragraphs  7-12,  above, 
and  paragraphs  41-45,  chapter  6. 

23.  Land  to  be  viewed  by  disinterested  freeholders. — At  the  time  ap- 
pointed for  the  hearing  of  the  petition,  if  the  court  find  that  it  will 
be  to  the  advantage  of  the  ward  to  lease  the  lands  as  prayed  for  in 
the  petition,  said  court  must  appoint  three  disinterested  freeholders 
of  the  vicinity,  who  are  not  of  kin  to  the  petitioner,  to  view  such 
lands  and  report  in  writing  to  the  court  their  opinion  as  to  the  pros- 
pects of  their  containing  coal,  and  in  what  quantity,  and  the  terms 
upon  which  it  would  be  advantageous  to  said  ward  to  lease  said  lands 
for  mining  said  coal.  Before  entering  upon  the  discharge  of  their 
duties  under  this  act,  said  freeholders  must  take  an  oath  faithfully 
and  impartially  to  discharge  such  work.1 

24.  Probate  court  to  order  lease. — Upon  the  report  of  said  free- 
holders being  returned  to  and  filed  with  said  court,  if  said  court  is 
satisfied  that  it  will  be  to  the  advantage  of  said  ward  to  lease  the 
lands  for  such  mining  purposes,  such  court  must  order  such  guard- 
ian to  lease  the  same,  upon  such  terms  as  said  court  may  direct, 
which  must  not  be  less  favorable  to  the  ward  than  those  reported  by 
the  freeholders.4 

25.  Royalty;  report  of  by  guardian  :  band. — The  guardian,  must, 
within  six  months  after  the  receipt  of  the  first  n  ya-lty  under  such 
lease,  report  to  the  court  the  amount  thereof,  and  the  court  musl 
then  fix  a  bond  which  will  cover  the  royalty  from  said  lease;  and 
the  court  may,  at  any  time  he  may  deem  the  bond  insufficient  to 
secure  the  same,  increase  the  bond  or  require  new  bond.5 

1  g  1,  87  v.  223.  2  §  2,  87  v   223.  3  §  3,  87  v.  223. 

4  2  4,  87  v.  223.  6  ?  5,  87  v.  223. 


chap.  7,  26-32.]       lease  of  ward's  lands.  1436 

26.  Change  in  terms  of  leasing.— If  the  guardian  shall  be  unabfe 
to  lease  the  lands  upon  the  terms  ordered,  he  may  report  the  fact  to 
the  court,  and  the  court  may,  in  its  discretion,  change  the  terms  of 
leasing,  but  not  below  the  customary  royalty  in  the  vicinity  of  said 
lands.1 

27.  Lands  owned  in  common  by  minors. — Where  the  same  person 
is  guardian  of  two  or  more  minors  owning  lands  in  common,  said 
minors  may  be  joined  as  defendants  in  the  same  petition  ;  or  if  such 
minors  have  different  guardians,  such  guardians  may  unite  in  the 
same  petition  under  this  act.2 

28.  Guardian  may  lease  tvard's  land  for  oil  or  gas  purposes. — A 
guardian  of  the  person  and  estate,  or  of  the  estate  onlv,  of  any 
minor,  or  of  a  lunatic,  idiot  or  imbecile,  may  lease  the  real  estate 
of  his  ward,  or  of  said  lunatic,  idiot  or  imbecile,  for  petroleum  oil 
or  natural  gas  purposes,  or  either,  for  such  period  of  time  not  ex- 
ceeding ten  years,  as  may  be  authorized  by  the  probate  court  ap- 
pointing such  guardian.3 

29.  Petition  therefor. — Before  executing  such  lease  said  guardian 
must  file  his  petition  for  authority  to  make  the  same  in  the  probate 
court  appointing  him,  which  petition  must  contain  a  description  of 
the  real  estate  sought  to  be  so  leased,  a  particular  and  detailed  state- 
ment of  the  terms,  time  and  conditions  of  the  proposed  lease,  and, 
as  near  as  may  be,  the  net  annual  value  thereof  to  said  ward/  For 
adaptable  forms,  see  chapter  5,  and  first  part  of  this  chapter. 

30.  What  to  contain. — In  cases  where  it  is  sought  to  lease  the  real 
estate  of  a  lunatic,  idiot  or  imbecile,  for  said  purpose,  said  guard- 
ian must  also  set  forth  in  his  petition  the  number,  name.-,  ayes  and 
residences  of  those  who  have  the  next  estate  of  inheritance  from 
said  ward,  all  of  whom,  as  well  as  the  ward,  must  be  made  defend- 
ants, as  in  other  cases.5 

31.  Notice  of  hearing  to  be  given  paHies  interested.— On  filing  the 
petition,  notice  of  the  filing  thereof,  and  its  object  and  purport,  and 
of  the  time  of  hearing  of  the  same  in  said  court,  must  be  given  the 
ward  and.  all  other  defendants  in  the  same  manner  as  in  proceedings 
in  said  court  to  sell  the  real  estate  of  a  minor.6     Pee  chapter  5. 

32.  Court  to  prescribe  terms,  covenants,  etc. — Upon  the  final  hear- 
ing, if  the  court  is  satisfied  from  the  evidence  that  it  will  be  for  the 
best  interests  of  said  ward,  and  the  prayer  of  the  petition  is  granted, 
the  court  may  prescribe  the  terms,  covenants,  conditions  and  stipu- 
lations of  the  lease,  either  in  accordance  with  those  set  forth  in  the 
petition,  or  otherwise  ;  and  such  lease,  when  so  made  by  said  guard- 
ian, must  be  reported  by  him  to  said  court.  Such  lease  will  not 
take  effect  until  it  is  approved  and  confirmed  by  said  court.7 

>?6,  87  v.  223.        2?7,  87  v.  224.        3  g  1,  87  v.  162.        *  g  2,  87  v.  162. 
6  §3,  87  v.  162.        6H.  87v.  162.        U  5,  87  v.  162. 
10 


144  TAXATION  AND  TAX  TITLES.  [CHAP.  8,  1-2. 


CHAPTER  8. 

TAXATION  AND  TAX  TITLES,  AS  AFFECTING  GUARDIAN  AND 

WARD. 

Par.  Par. 

1.  Guardian  must  pay  ward's  land     12.  When  property  to  be  listed,  and 
tax.  as  of  what  day. 

2.  And  list  same  for  taxation.  13.  How  ward's  property  should  be 
3-5.  Penalty  for  neglect.  listed. 

6-7.   Must  pay  out  of  his  own  funds,  14.  How  county  treasurer  may  col- 

if  necessary.  lect  from  guardian. 

8.  Compensation  and  lien  for  such  15.  Release   of  ward's   tax   title   by 
advances.  guardian. 

9.  When   guardian   or  trustee  sells  16.  Effect  of  tender  to  release, 
land,  tax  paid  out  of  proceeds.  17.  Lands  sold  for  taxes  may  be  re- 

10.  Guardian  must  list  the  personal  deemed  within  two  years, 
property  of  ward  for  taxation.         18.  As   to    general    validity   of   tax 

11.  Where   personal    property   shall  titles. 

be  listed.  19.  How  lands  may  be  redeemed. 

1.  Guardians  must  pay  ward's  land  tax. — Every  person  must 
pay  tax  each  year  for  the  lands  or  town  lots  of  which  he  or  she 
may  have  the  care  as  guardian.1 

2.  And  list  same  for  taxation. — It  is  the  duty  of  every  person 

1  §2  2845,  2847.  Under  the  statute  relating  to  taxation,  the  guardian  of 
minors  is  charged  with  the  duty  of  representing  the  real  estate  of  their 
wards  in  listing  it  for  taxation  and  payment  of  taxes  as  well  as  in  the  gen- 
eral management  of  such  estate,  and  as  such  guardian  he  ma}"  represent  his 
ward's  estate  under  the  statute  above  cited  [2  S.  &  C,  p.  509,  petitioning 
for  road  improvements],  either  to  ask  for  or  oppose  such  improvement. 

Where  minor  children,  who  are  tenants  in  common  of  the  lot  of  land,  re- 
side on  the  same,  they  are  resident  owners,  but  whether  each  is  to  be 
counted,  or  all  counted  as  one.      Quaere. 

If  the  names  of  such  minors,  and  of  the  guardian  individually,  are 
signed  to  a  petition  by  direction  of  the  guardian,  and  in  his  presence,  it  is 
equivalent  to  his  signing  as  guardian.      Campbell  v.  Park,  32  0.  S.  544. 


CHAP.  8,  3-6.]  TAXATION  AND  TAX  TITLES.  145 

seized  of  or  holding  real  estate  (as  guardian  or  otherwise)  to  list 
the  same  for  taxation  with  the  county  auditor,  on  or  before  the 
third  Monday  of  May  next,  after  the  same  shall  be  subject  to 
taxation  ;  and  in  case  of  neglecting  to  list  the  same  as  aforesaid, 
the  county  auditor  must,  when  the  same  shall  be  thereafter  listed, 
charge  upon  each  tract  so  neglected  to  be  listed,  the  taxes  for 
each  year  they  shall  have  been  omitted,  after  becoming  liable  for 
taxation,  together  with  twenty-five  per  centum  penalty  and  six 
per  centum  interest  thereon,  in  addition  to  the  taxes  of  the  cur- 
rent year.1 

3.»  Penalty  for  neglect. — If  any  guardian  neglect  or  refuse  to 
list2  or  pay  the  taxes  on  the  same,  in  the  manner  above  indicated, 
such  guardian  is  made  liable,  in  an  action,  to  his  ward,  for  any 
damage  sustained  by  such  neglect  or  refusal.3 

4.  Therefore,  if  by  reason  of  the  guardian's  neglect  to  list  the 
lands,  there  be  a  penalty  suffered  to  be  charged  against  the 
lands,  he  will  be  liable  to  pay  the  ward  that  penalty. 

5.  So  if,  by  failure  to  pay  the  taxes,  the  lands  be  subjected  to 
the  payment  of  a  penalty,  or  be  sold  for  the  taxes  at  delinquent 
or  forfeited  sale,  the  guardian  will  be  liable  to  the  ward  for  any 
such  penalty,  or  for  the  penalty  and.  interest  required  to  be  paid 
to  redeem  them  ;  or,  in  case  the  lands  are  thereby  lost,  then  for 
the  value  of  the  lands. 

6.  Must  pay  out  of  his  own  funds,  if  necessary. — It  seems  that 
the  guardian  must  in  all  cases  list  and  pay  the  taxes  upon  the 
lands  of  his  ward,  whether  he  has  money  of  the  ward's  in  his 
hands  or  not,  because  it  is  expressly  made  the  duty  of  guardians 
and  executors  having  lands  in  charge  to  pay  the  taxes.  The 
statute  makes  a  difference  between  them  and  agents  and  attor- 

1 1  2846. 

2  Three  executors  of  an  estate  resided  in  the  same  township,  two  within  a 
village,  another  without  it,  and  a  fourth  in  another  county;  Held,  that  the 
taxable  moneys,  etc.,  of  the  estate  must  be  entered  for  taxation,  one-third  as 
of  the  place  of  residence  of  each  executor  in  the  first  county.  Harkness  v. 
Mathews,  10  Ohio  St.  431. 

Two  administrators  resided  in  different  counties;  Held,  such  property 
must  be  taxed  in  the  county  of  the  administrator  who  has  actual  possession 
and  control  of  the  property.     Brown  v.  Noble,  42  Ohio  St.  405. 

This  would  very  probably  apply  to  guardians,  also. 

3  §2848. 


146  TAXATION  AND  TAX  TITLES.  [CHAP.  8,  7-10. 

neys,  as  these  latter  are  only  required  to  pay  the  taxes,  and  made 
liable  for  the  consequences  of  not  paying  them,  when  they  have 
funds  of  the  principal  in  their  hands.1 

7.  So  that,  if  the  guardian  have  no  personal  estate  in  his 
hands,  and  the  ward  lias  no  means  but  the  land  itself,  the  guar- 
dian may  make  application  to  court  for  an  order  to  sell  the 
lands;2  or,  if  he  does  not  think  it  best  to  pursue  this  course,  or 
does  not  do  so  in  time  to  pay  the  taxes,  he  must  then  pay  them 
from  his  own  funds. 

8.  Compensation  and  lien  for  such  advances. — Every  guardian, 
having  the  care  of  lands  as  aforesaid,  who  is  put  to  any  trouble 
or  expense  in  listing  or  paying  the  taxes  on  such  lands,  or  who 
has  to  advance  his  own  money  for  listing  or  paying  the  taxes  on 
such  lands,  will  be  allowed  a  reasonable  compensation  for  the 
time  spent,  the  expenses  incurred,  and  money  advanced,  which 
must  de  deemed  in  all  courts  a  just  charge  against  the  ward.3 

9.  When  guardian  or  trustee  sells  land,  tax  paid  out  of  pro- 
ceeds.— Whenever  any  land  is  sold  by  guardians  or  trustees,  the 
court  must  order  the  taxes  and  penalties,  and  the  interest 
thereon  against  such  lands,  to  be  paid  out  of  the  proceeds  of 
such  sale.* 

10.  Guardian  must  list  the  personal  property  of  ward  for  taxa- 
tion. The  personal  property  of  every  ward  must  be  listed  by 
his  guardian,  of  every  minor  child,  idiot,  or  lunatic  having  no 
guardian,  by  his  father,  if  living;  if  not,  by  his  mother,  if  liv- 
ing ;  and  if  neither  father  nor  mother  be  living,  by  the  person 
having  such  property  in  charge ;  of  every  wife  by  her  husband, 
if  of  sound  mind  ;  if  not,  by  herself;  of  every  person  for  whose 
benefit  property  is  held  in  trust  by  the  trustees,  etc.5 

1  §  2850. 

2  In  such  case  the  tax  is  a  debt  of  the  estate,  and  if  the  administrator 
have  not  personal  assets  to  pay  for  the  same,  he  may  apply  for  an  order  to 
sell  lands  for  that  purpose.     Welsh  v.  Perkins,  8  Ohio,  52 

3  §2851. 

4  §2854. 

5  §2734.  This  same  section  of  the  law  provides  that  "  every  person  of  full 
age  and  sound  mind  must  list  the  personal  property  of  which  he  is  the 
owner,  and  all  moneys  in  his  possession,  all  moneys  invested,  loaned,  or 
otherwise  controlled  by  him,  as  agent  or  attorney,  or  on  account  of  any 


CHAP.  8,  11-15.]  TAXATION    AND    TAX    TITLES.  147 

11.  Where  personal  property  must  be  listed.  Every  person  re- 
quired to  list  property  on  behalf  of  others,  must  list  the  same  in 
the  same  township,  city,  or  village,  in  which  he  would  be  re- 
quired to  list  it  if  such  property  were  his  own  ;  but  he  must  list 
it  separately  from  his  own.  specifying,  in  each  case,  the  name  of 
the  person,  estate,  company,  or  corporation,  to  whom  it  belongs.1 

12.  When  property  to  be  listed,  and  as  of  what  day.  Each  per- 
son required,  to  list  property  must,  annually,  upon  receiving  a 
blank  for  that  purpose  from  the  assessor,  or,  within  ten  days 
thereafter,  make  out  and  deliver  to  the  assessor  a  statement,  veri- 
fied by  his  oath,  of  all  the  personal  property,  moneys,  credits, 
investments  in  bonds,  stocks,  joint-stock  companies,  annui- 
ties, or  otherwise,  in  his  possession,  or  under  his  control,  on 
the  day  preceding  the  second  Monday  of  April  of  that  year, 
which  he  is  required  to  list  for  taxation,  either  as  owner  or 
holder  thereof,  or  as  parent,  guardian,  trustee,  or  otherwise.2 

13.  How  ward's  property  should  be  listed.  The  guardian 
should  get  two  such  blanks  from  the  assessor,  and  list  the  per- 
sonal property  of  his  ward  on  a  different  blank  from  that  on 
which  he  lists  his  own.  This  latter  he  should  list  as  the  prop- 
eety  of  C.  D. ;  the  former  he  should  list  as  the  property  of  C.  D. 
as  guardian  of  A.  B. 

14.  How  county  treasurer  may  collect  from  guardian.  The  law 
provides  that,  among  other  means,  the  county  treasurer  may 
adopt  to  compel  the  payment  of  taxes,  he  may  distrain  (seize) 
goods  and  chattels  of  the  delinquent,3  and  also  provides  that  if 
he  is  unable  to  collect,  by  distress  (seizure),  the  taxes  assessed 
upon  any  guardian  (among  others),  then  such  treasurer  must 
apply  to  the  clerk  of  the  court  of  common  pleas  in  his  county, 
at  any  time  after  his  semi-annual  settlement  with  the  county 

other  person  or  persons,  company  or  corporation  whatsoever,  and  all  mo- 
neys deposited  subject  to  his  order,  check,  or  draft;  and  all  credits  due  or 
owing  from  any  person  or  persons,  body  corporate  or  politic,  whether  in  or 
out  of  such  county;  all  money  loaned  on  pledge  or  mortgage  of  real  estate 
although  a  deed  or  other  instrument  may  have  been  given  for  the  same,  if 
between  the  parties  the  same  is  considered  as  security  merely." 

Judgments  must  be  listed  for  taxation,  the  same  as  other  property,  at  their 
true,  not  their  nominal,  value.     Cam, Ton  r.  Cappelhir,  II  ().  S.  533. 

The  guardian  must  list  ail  such  property  of  his  ward. 

1  \  2735.     See  note  2,  page  145.  2  g  2736.     See  note  2,  page  145. 

3i^  ]0U\,  1095. 


148  TAXATION    AND    TAX    TITLES.       [CHAP.  8,  15-18 

auditor,  and  said  clerk  must  cause  a  notice  to  be  served  upon 
such  guardian,  requiring  him  forthwith  to  show  cause  why  he 
should  not  pay  such  taxes ;  and  if  he  fails  to  show  a  sufficient 
cause,  the  court,  at  the  term  to  which  said  notice  is  returnable, 
must  enter  a  rule  against  him  for  the  payment  of  such  taxes 
and  the  cost  of  such  proceeding,  which  rule  will  have  the  same 
force  and  effect  as  a  judgment  at  law;  and  be  enforced  by  at- 
tachment or  execution,  or  such  process  as  the  court  directs.1 

15.  Release  of  ward's  tax  title  by  guardian.  When  any  minor 
has  title  to  any  real  estate  by  tax  title  only,  the  guardian  of  such 
minor  may,  if  he  deem  it  advisable,  by  deed  of  release  and  quit- 
claim, convey  such  minor's  interest  or  title  to  the  person  entitled 
to  redeem  such  real  estate,  upon  receiving  from  such  person  the 
full  amount  paid  for  such  tax  title  with  the  penalty  and  interest 
allowed  by  law  in  that  behalf.2  As  to  what  this  penalty  and  in- 
terest are,  see  paragraph  19,  below. 

16.  Effect  of  tender  to  release.  If  any  such  guardian  tenders 
such  deed  to  the  person  so  entitled  to  redeem  such  real  estate, 
and  such  person  refuses  to  accept  the  same,  and  pay  as  afore- 
said, such  person,  in  any  proceeding  thereafter  instituted  to  re- 
deem or  recover  such  real  estate  can  not  recover  costs.2 

17.  Lands  sold  for  taxes  may  be  redeemed  within  two  years.  All 
lands  aud  town  lots  sold  for  taxes  at  delinquent  sale,  may  be  re- 
deemed at  any  time  within  two  years  after  the  sale  thereof;  but  any 
lands  sold  for  taxes,  belonging  to  any  person  within  the  age  of 
minority,  of  unsound  mind,  or  imprisoned,  may  be  redeemed  at  any 
time  within  two  years  after  such   disability  is  removed/* 

18.  As  to  general  validity  of  tax  title.  Although  the  statutes  iridi- 
dicate  that  a  tax  title  is  good  after  two  years,  it  is  in  edict  not 
much,  if  any  thing,  more  than  a  lien  on  the  land  fur  the  taxes 
paid,  and  the  penalties  and  interest  prescribed  by  law,  as  the 
courts   almost   universally  find   some  way  of  restoring    the    lands 


1 1  1097.     State  nut  liable  for  fees.     39  O.  S.  207. 

2  \  6294. 

3  \  2890,  as  am.  83  O.  L.  75.     And  without  paying  for  improvements  made 
by  purchaser.     Reynolds  v.  Liepers,  7  O.  (pt.  1)17. 


OHAP.  8,  19.]  TAXATION    AND    TAX    TITLES.  149 

to  their  rightful  owner,  if  these  items  are  paid  ;  and  this  is  quite 
just  and  right.  Twenty-one  years'  possession  under  a  tax  title 
would  generally  not  be  disturbed ;  but  then  it  would  be  the 
lapse  of  time,  rather  than  the  tax  deed,  that  would  make  the 
title  good. 

19.  How  lands  may  be  redeemed.  Any  person  desiring  to  re- 
deem an}-  land  or  town  lot  sold  at  delinquent  tax  sale,  under  or 
by  virtue  of  any  law  of  this  state,  within  one  year  after  the  sale 
thereof,  or  within  one  3-ear  after  the  expiration  of  any  of  the 
disabilities  named  in  paragraph  17,  above,  may  deposit  with  the 
county  treasurer,  upon  the  certificate  of  the  county  auditor,  par- 
ticularly describing  such  land  or  town  lot,  and  specifying  the 
same,  an  amount  of  money  equal  to  that  f>r  which  such  land  or 
town  lot  was  sold,  and  the  taxes  subsequently  paid  thereon  by 
such  purchaser,  or  those  claiming  under  him,  together  with  in- 
terest, and  fifteen  per  centum  penalty  on  the  whole  amount,  paid, 
including  costs,  and  one  dollar  to  pay  the  expenses  of  advertis- 
ing, as  provided  by  law  ;  and  any.person  desiring  to  redeem  any 
land  or  town  lot  so  sold  for  taxes,  after  the  expiration  of  one 
year  from  the  sale  thereof,  and  within  the  time  limited  by  law 
for  such  redemption,  may  deposit  with  the  county  treasurer, 
upon  the  certificate  of  the  county  auditor,  particularly  describ- 
ing such  land  or  town  lot,  and  specifying  the  same,  an  amount 
of  money  equal  to  that  for  which  such  land  or  town  lot  was  sold, 
and  the  taxes  subsequently  paid  thereon  by  such  purchaser,  or 
those  claiming  under  him,  together  with  interest  and  five  per 
centum  penalty  on  the  whole  amount  paid,  including  costs,  and 
one  dollar  to  pay  the  expense  of  said  advertising.1 

1  §  2891.  The  proceeding  to  redeem  is  essentially  in  rem ;  and  it  is  not 
necessary  that  any  person  be  named  as  party  defendant.  Plumb  v.  Rob- 
inson,  13  0.  S.  298.     Parol  evidence  admissible  to  show  trust  estate.     lb. 

Validity  of  title  can  not  be  drawn  in  question  in  a  proceeding  to  redeem. 
Masterson  v.  Beasley,  3  0.  301 ;   nor  authority  of  agent  questioned.     76. 

Right  of  appeal  under  former  laws.  Street  v.  Francis,  3  0.  277  ;  Rawson 
v.  Boughton,  5  0.  328.  Married  women  can  redeem.  Plumb  v.  Robinson, 
13  O.  S.  298. 


150 


ACCOUNT   OP   GUARDIAN,  ETC. 


[chap.  9, 1. 


CHAPTER  9. 

ACCOUNT  AND  SETTLEMENT,  AND  COMPENSATION  OF 
GUARDIAN. 


Par. 
1-2.    When     settlements     must     l>e 
made. 

3.  Object  of  account,  and  how  made. 

4.  Should   get   blank   book  for   ac- 
count. 

5.  Account  of  each  ward  separate. 

6.  Should  charge  himself  with  what. 

7.  As  to  interest  on  funds   in    his 
hands. 

8.  Should  credit  himself  with  what. 

9.  Bad  debts,  what  to  do  about. 
10.   Guardian  should  take  receipts. 
11-12.  Concerning   the   form  of  the 

account. 
13-15.  Form  of  account. 


Par. 
'.Y2.   For  taxes  paid,  etc. 

33.  When  no  compensation  allowed. 

34.  Compensation  of  guardian's  ex- 
ecutor, etc. 

35.  Notice  of  filing   accounts  to  be 
published. 

36.  Who  may  file  exceptions  to  ac- 

count. 

37.  The  hearing. 

38.  Examination  of  accountants  un- 

der oath. 
39-40.  Guardian   and  ward  can   not 

sue  each  other,  until. 
41-42.  When  to  settle  with  ward,  and 

take  receipts. 


16-17.  The  final  account  must  show    43-48.  Form  of  journal  entry  of  con- 


what. 
18-22.  Bad  debts,  how  noted. 
23-25.  Guardian  must  make  affidavit 

to  the  account.     Its  form. 

Form  of  journal  entry  wheu  the 

accounts  are  filed. 


26. 


COMPENSATION   OF   GUARDIAN. 

27-30.  Its  amount. 

31.  For  care  of  real  estate. 


firmation  of  accounts. 

49.  To  whom  guardian  must  pay  bal- 
ance in  hand  at  settlement. 

50.  Effect  of  settlement  with  court. 

51.  When,  and  how  ward  may  review 
the  settlement. 

52.  Guardian   should    get    final    re- 
lease from  ward. 

53-54.  Form  of  such  release. 

55.  Such  release  no  defense,  when. 

56.  Notice  of  filing  of,  etc. 

1.  When  settlements  must  be  made. — As  already  stated  in  chap- 
ter 6,  the  guardian  must  make  a  settlement  ot  his  account  with 
the  court,  under  oath,  at  least  once  in  every  two  years,  and  at 
such  other  times  as  the  court  may,  either  upon  its  own  motion 
or  upon  the  motion  of   any  interested    person,   require;1    and  he 

1  ?  6269.  as  am.  77  O.  L.  77.     Newton  v.  Hammond,  38  <  >.  S.  430. 

The  juri.-d.ctK f  pmbate  court-  over  the  settlement  of  such  accounts  is 

exclusive.  Newton  v.  Hammond,  38  O.  S.  430;  Gorman  v.  Taylor,  43  O.  S. 
86. 

The  account  required  by  section  14  of  the  guardian  act  of  April  12,  1858 


CHAP.  9.  2-3.]  ACCOUNT    OF    GUARDIAN,  ETC.  151 

must  make  a  final  settlement  in  the  same  manner,  at  the  expira- 
tion of  his  trust,1  whether  by  resignation,  removal,  marriage  of 
a  female  guardian,2  removal  from  the  state,  choice  of  another 
guardian  by  the  ward  at  a  proper  age,3  the  arrival  of  the  ward 
at  full  age,  death  of  the  ward,4  or  from  other  cause.5 

2.  In  either  of  the  above  cases,  the  court  should  at  once  re- 
quire the  guardian  to  make  a  full  and  final  settlement6  of  his 
account,  and  a  failure  to  comply  would  be  a  breach  of  his  bond.' 

3.  Object  of  account,  and  how  made. — The  language  of  the  stat- 
ute requiring  the  guardian  to  render,  on  oath,  to  the  proper 
court,  an  account  of  the  receipts  and  expenditures,  means,  of 
course,  all  the  receipts  and  expenditures,  and  the  account  should 
be  a  full  statement  of  all  the  transactions  of  the  guardian  and 
condition  of  the  ward's  estate.     The  object  of  the  account  is  to 

(S.  &  C.  670;  I  6269  Rev.  Stat.),  to  be  rendered  by  a  guardian  to  a  probate 
court  at  least  once  in  every  two  years,  when  rendered  and  judicially  passed 
upon  by  the  court,  is  a  settlement  within  the  meaning  of  section  31  of  the 
act.     (§6289;  see  pars.  50,  51.) 

Under  the  provisions  of  said  section  31,  every  settlement  so  made  by  a 
guardian  is  final  between  the  guardian  and  the  ward,  unless  an  appeal  is 
taken  therefrom,  or  the  settlement  is  opened  in  accordance  with  the  provis- 
ions of  the  section.     Woodmansee  v.  Woodmansee,  32  0.  S.  18. 

A  failure  by  a  guardian  to  settle  his  accounts  within  the  time  prescribed 
by  law  is  clearly  a  breach  of  his  bond.  Hocking  District  Court,  1852.  Case 
v.  State,  10  W.  L.  J.  163. 

A  guardian,  appointed  in  Pennsylvania,  received  the  assets  of  his  ward, 
and  removed,  with  the  assets  of  his  ward,  to  Ohio,  and  died,  without  settle- 
ment of  his  accounts  as  guardian  :  Held,  that  the  ward  could  sustain  a 
bill  in  equity,  in  the  courts  of  Ohio,  for  an  account  against  the  personal  rep- 
resentative of  the  guardian.     Pedan  v.  Robb,  8  O.  227- 

Guardian  must  account  for  building  removed  by  his  permission  from 
ward's  land.  Johnson  v.  Meyer,  2  Clev.  Rep.  81  ;  17  of  Art.  "Guardian 
and  Ward,''  3  Bates's  Dig. 

1  \  6269.  A  probate  court,  in  settling  an  account,  would  act  upon  equita- 
ble principles.     Perrv  on  Trusts,  \  407. 

"- 1  6292.         3  $  6258,  6272.  *  See  par.  67,  chap.  5.  5  \\  6269,  6272. 

6 Upon  closing  his  final  account  in  the  probate  court,  an  amount  being 
due  his  ward,  the  guardian  induces  her  to  feign  a  receipt  for  the  money  as 
though  paid,  agreeing  to  be  responsible  to  her  for  said  amount  with  interest: 
Held,  an  action  may  be  maintained  upon  such  agreement  by  the  ward,  and 
the  sum  actually  due  from  the  guardian  recovered,  without  in  any  way  open- 
ing and  reviewing  the  accounts  which  had  been  settled  in  the  probate  court. 
Lindsay  v.  Lindsay,  28  U.  S.  157. 

7 10  W.  L.  Jour.  167.     See  notes  above,  and  on  pp.  177-8.     See  chap.  10. 


152  ACCOUNT    OF    GUARDIAN,    ETC  [CHAP.  9,  4-6. 

show  the  court  and  the  parties  in  interest  what  these  transac- 
tions have  been  and  what  this  condition  is,  and  to  perpetuate 
this  of  record.  For  these  and  other  reasons,  the  account  should 
be  so  clear  and  definite  that  it  may  be  understood  both  by  the 
court  and  all  parties  in  interest  without  the  presence  of  the  guar- 
dian, and  without  making  it  necessary  to  call  him  into  court  for 
the  purpose  of  explaining  any  of  its  items. 

4.  Should  get  blank  book  for  accounts. — As  soon  as  the  guardian 
is  ready  to  enter  upon  the  discharge  of  his  duties,  he  ought  to 
procure  a  convenient  sized  blank  account  book,  sufficiently  large  to 
last  him  during  his  appointment.  And  if  he  be  guardian  of  several 
wards,  he  should  procure  as  many  such  books  as  he  has  wards, 
or  one  sufficiently  large  to  open  in  it  a  separate  account  with 
each  of  them. 

5.  Account  of  each  ward  separate. — It  does  not  matter  whether 
they  be  all  the  children  of  the  same  parents,  and  derive  their 
property  from  the  same  source  or  not,  since,  as  each  ward  has  a 
separate  and  exclusive  share  of  such  property,  to  which  his  co- 
wards have  no  claims  whatever,  the  accounts  of  each  must  be 
kept  separate  and  distinct. 

6.  Should  charge  himself  with  what. — The  guardian  should 
charge  himself  with  all  moneys,  goods  and  chattels,  notes,1  bonds, 
mortgages,  or  other  evidences  of  debts  due  to  the  ward  from  any 
source,  which  come  to  the  guardian's  knowledge  ;  also  all  rents 
received  by  the  guardian,  as  well  as  those  which  may  be  lost,  all 

1  A  guardian  is  liable  to  his  ward  for  accepting  from  an  administrator  or 
other  party  a  note  or  other  obligation  in  lieu  of  money  coming  to  the  ward's 
estate,  when  the  same  proves  uncollectible.  Bescher  »>.  State,  63  Ind.  302. 
But  see  page  67,  as  to  assets  from  estate. 

Where  a  person  occupies  the  double  relation  of  administrator  of  a  dece- 
dent's estate,  and  guardian  of  his  minor  heirs  of  such  estate,  and  it  becomes 
his  duty  as  such  administrator  to  pay  over  a  fund  in  his  hands  for  distribu- 
tion to  himself  as  guardian  for  the  minor  heirs,  the  law  will,  in  general, 
presume  such  payment  to  have  been  made.    Wilson  v.  Wilson,  17  0.  S.  150. 

Where  a  party  acting  in  a  double  capacity  is  possessed  of  a  fund  in  one 
capacity,  which  it  is  his  duty  (so  to  speak)  to  tranfer  to  himself  in  another, 
such  transfer  will  in  law  be  presumed.    lb.  156. 

But  this  legal  presumption  may  be  rebutted ;  and  where  he  charges  him- 
self with  the  fund  in  his  account  as  administrator,  but  fails  to  credit  himself 
in  that  account,  with  its  payment  to  himself  as  guardian,  and  in  an  at- 
tempted settlement  of  his  account  as  guardian,  refrains  from  charging  him- 


CHAP.   9,  7-8.]  ACCOUNT    OF    GUARDIAN,  ETC.  153 

earnings  of  the  ward,  and  all  interests  upon  money  due  the 
ward,  and  jf  lands  be  sold,  with  the  proceeds  thereof,  giving  the 
dates  when  the  amounts  were  received,  and  entering  the  princi- 
pal and  interest  separately. 

7.  As  to  interest  on  funds  in  his  hands. — He  is  not  chargeable 
with  interest1  upon  money  in  his  hands,  unless  he  apply  the 
same  to  his  own  use,  or  derive  some  benefit  from  the  loan  of  it, 
or  unless  he  unreasonably  and  unnecessarily  delayed  investing 
it  or  paying  it  over  to  the  proper  person,  especially  if  the  claim 
of  such  person  was  drawing  interest.2 

8.  iShould  credit  himself  with  what. — He  should  credit  himself 
with  all  payments  he  actually  makes  for  the  ward,  whether  for 
board,  clothing,  tuition,  just  and  proper  debts  due  from  the  ward, 
incumbrances  on  the  estate,  taxes  upon  personal  and  real  property, 
repairs  upon  real  propertj-,  insurance  in  proper  cases,  expenses 
of  the  guardianship,  as  probate  fees,  reasonable  attorney's  fees 
in  proper  cases,3  etc.,  etc. 

If  the  guardian  has  advanced  money  for  his  ward,  when  no 
funds  of  the  ward  were  in  his  hands,  to  pay  taxes,  or  to  redeem 
land  of  the  ward  from  a  mortgage  that  was  about  to  be  fore- 
self  therein  with  such  fund,  the  legal  presumption  of  a  transfer  of  the  fund 
is  rebutted;  and  in  an  action  by  his  former  wards  on  his  bond  as  adminis- 
trator, for  the  recovery  of  the  fund,  he  will  be  estopped  to  deny  that  he  still 
holds  the  same  as  administrator,     lb. 

1  See  page  67,  as  to  when  the  statutes  makes  him  liable  for  interest.  Also, 
pages  79,  81,  84,  and  notes  thereon. 

2  "  The  proper  mode  of  taking  the  account  of  trustees  is  to  treat  all  the 
income  of  the  trust  received  during  the  current  year  as  unproductive,  and 
to  charge  against  the  income  of  the  current  year  all  the  disbursements,  in- 
cluding the  compensation  or  commissions  of  the  trustees  for  the  same  year, 
and  to  strike  a  balance,  upon  which,  as  a  general  rule,  interest  is  to  be  al- 
lowed, but  in  such  a  way  as  not  to  compound  it.  If,  however,  these  bal- 
ances are  too  small  to  invest,  or  for  any  reason  the  trustees  might  equitably 
keep  them  on  hand,  interest  upon  them  will  not  be  allowed  upon  them  until 
the  balances  so  accumulate  as  to  be  properly  invested,  or  until  the  trustees 
ought  to  invest  them."     Perry  on  Trusts,  §468. 

3  It  is  stated  in  Perry  on  Trusts  (§432),  Redfield  on  Wills  (vol.  3,  pp.  537, 
557),  and  by  other  writers,  as  a  strict  rule,  that  an  attorney,  being  a  trustee, 
can  make  no  charge  against  the  trust  estate  for  services  rendered  by  him  in 
his  professional  capacity  to  the  estate  of  which  he  is  trustee;  the  learned 
author  first  named  above  citing  thirteen  English,  three  New  York,  and  one 


154  ACCOUNT    OP    GUARDIAN,  ETC.  [CHAP.  9,  9. 

closed,  the  l.md  being  of  more  value  than  the  amount  of  the 
mortgage,  he  will  be  allowed  interest  on  the  money  so  advanced, 
and  may  credit  himself,  in  his  account,  with  the  same. 

9.  Bad  debts,  what  to  do  about. — If  there  are  any  bad  debts  due 
the  ward,  rents  not  collectible,  etc.,  they  should  be  entered  in  the 
form  of  a  note  or  otherwise  in  the  account,  with  an  explanation  as 
to  why  they  were  not  collected.  If  this  is  not  done,  interested  par- 
ties may,  in  after  years,  learn  of  them  for  the  first  time,  and  charge 
the  guardian  with  negligence  in  not  collecting  them,  by  which 
time  he  might  have  forgotten,  or  be  unable  then  to  show  why 
they  were  not  collected.  For  this  reason  it  is  sometimes  well, 
especially  if  a  debt  be  large,  to  reduce  it  to  judgment,  and  get 
the  sheriff's  or  other  officer's  return  of  "no  goods"  as  evidence 
of  the  impossibility  of  collecting.     Still,  expenses  should  not  be 

North  Carolina  oases  to  sustain  this  rule;  the  others,  so  far  as  observed, 
citing  some  of  the  same  cases. 

That  this  rule  is  not  of  universal  application  is  shown  by  the  following 
extract  from  a  note  in  Schouler's  Domestic  Relations  (page  500) :  "  Where 
commissions  at  the  court's  discretion  are  allowed,  special  services  performed 
bv  the  guardian  may  be  considered  in  fixing  the  rate  of  commission,  but  not 
as  an  additional  charge.  .  .  .  McElhenny's  Appeal,  46  Penn.  St.  347. 
Even  in  New  York  the  unfairness  of  an  inflexible  rule,  applicable  to  all  who 
hold  trust  moneys,  has  led  to  the  assertion  of  a  doctrine  in  a  recent  case, 
which  threatens  to  disturb  the  chancery  rule,  formerly  considered  as  well 
settled,  namely,  that  services  of  a  professional  or  personal  character,  ren- 
dered the  ward,  may  be  allowed  to  the  guardian,  besides  the  usual  commis- 
sion, on  the  ground  that  they  were  rendered  not  as  guardian  but  as  an  in- 
dividual. Morgan  v.  Morgan.  39  Barb.  20.  In  Maine,  Massachusetts  and 
other  states  where  the  court  allows  what  is  reasonable,  the  guardian  may 
charge  specific  sums  for  special  services,  instead  of  or  in  addition  to  a  com- 
mission ;  provided  the  whole  does  not  exceed  a  fair  rate  of  compensation. 
Longley  v.  Hall,  11  Pick.  120;  Rathbun  v.  Colton,  15  Pick.  471 ;  Emerson, 
appellant.  32  Me.  159  ;  Dixon  v.  Homer,  2  Met.  420 ;  Roach  v.  Jelks.  40  Miss. 
T.'.l  ;   Evarta  v.  Mason,  11  Vt.  122." 

In  view  of  the  authorities  given  in  the  two  preceding  paragraphs,  and  of 
the  fact  that  the  English  rule  forbids  trustees  receiving  any  pecuniary  com- 
pensation  whatever,  the  first  paragraph  of  this  note  maybe  said  to  state  the 
English,  rather  than  the  American  rule;  and  in  view  of  the  further  fact  that 
Ohio  is  one  of  the  states  where  the  court  is  to  allow  reasonable  compensa- 
tion, the  concluding  part  of  the  second  paragraph  of  this  note  may  be  con- 
sidered as  the  rule  in  this  state;  and  as  far  as  known  to  the  writer,  it  is  in 
accordance  with  the  practice  of  our  probate  courts. 


CHAPTER  9,  10-15.]    ACCOUNT  OF  GUARDIAN,  ETC.  155 

needlessly  incurred  in  this  way.1  But  the  guardian  must  make 
every  reasonable  effort  to  collect  such  debts,  and  if  he  does  not 
succeed,  he  should  note  the  result  as  directed  in  paragraphs  18- 
22,  below. 

10.  Guardian  must  take  receipts. — For  every  payment  the  guar- 
dian makes,  he  should  take  a  receipt.  It  is  required  by  statute, 
that  his  accounts  be  verified  by  vouchers  or  proof;  and  unless 
he  makes  it  an  invariable  rule  to  pay  out  no  money  without  get- 
ting a  proper  receipt  for  it,  he  will  be  unable  to  prove  to  the 
court,  as  he  must  do  on  settling,  that  the  payments  were 
made. 

11.  As  to  form  of  account. — The  form  of  the  account  may  be 
such  as  will  be  most  readily  prepared  and  understood  by  per- 
sons having  a  limited  knowledge  of  accounts.  The  plainest 
form  of  "  single  entry  "  will  be  found  to  meet  the  necessities  of 
nearly  all  the  transactions  of  guardians  ;  the  most  complicated 
statements  perhaps  will  be  where  loans  and  investments  have 
been  made  ;  but  whatever  the  transactions  may  have  been,  they 
should  be  definitely  stated. 

12.  The  account  should  clearly  show  the  debits  and  credits  of 
the  guardian,  and  refer  by  number  or  otherwise,  to  the  vouchers 
produced ;  the  footings  should  be  made  and  the  balance  struck; 
and  the  whole  statement  should  be  so  complete  that  any  person, 
including  the  ward  after  he  shall  have  arrived  at  full  age,  can 
tell,  from  the  account,  without  explanation,  exactly  how  the 
guardian  stands  with  the  trust. 

13-15.  Form  of  account. — The  following  form  and  statement 
of  an  account  is  given  as  an  example,  showing  the  transactions 
of  a  guardian,  and  of  the  manner  of  striking  the  balance,  and 
showing  the  condition  of  the  estate  of  the  ward  at  the  time  of 
filing  the  account.  Another  form  substantially  the  same  is  given 
on  pages  254-6. 


x"  Ordinary  prudence  and  diligence  is  the  rule;  and  for  culpable  negli- 
gence subjecting  the  estate  of  his  ward  to  loss  he  may  make  himself  person- 
ally liable,  even  though  the  demand  be  against  a  person  residing  in  another 
stale.  He  is  not  to  sue  in  all  cases  where  ordinary  modes  of  collection 
fail;  for  the  expenses  of  litigation  are  10  be  weighed  against  the  chances  of 
realizing  a  benefit."     Schouler's  Dom.  Rel.  474.     See  page  86,  above. 

2?  6269,  as  amended,  Vol.  77,  O.  L..  p.  77.     Son  pnr,  7,  ehapter  5. 


156 


ACCOUNT    OP    GUARDIAN,    ETC. 


[CHAP.  9. 


Current  account  of  A.  B.,  Guardian  of  the  person  and  estate 


Receipts. 


1878. 
Sept.  10.. 


Sept.  10.. 

Oct.   1.... 

'•     1.... 
"    15.... 

1879. 
Jan.    2... 

"      2... 

"    15... 
March  1. 

April  1. . 


July    1.. 

•<  ]o;; 

Oct.    1... 

"     1... 

"    15... 

1880. 
Jan.    2... 

"      2... 

"    12... 
March   1. 
1. 
April  1 

"    16.. 
July    1 
"       1 

"      16 


STATEMENT  OF  ASSETS  RECEIVED,  OTHER  THAN  MONEY  AND  LANDS. 

From  J.  L.,  administrator  of  said  decedent,  the  following  prop- 
erty <>ii  distribution  in  kind,  to-wit: 

2  U.  S.  .$500.00  4  per  cent,  bonds .-..$1,000  00 

14  shares  L.  M.  R.  R.  stock 1,400  00 

1  note  on  H.  S 1,160  00 


$3,500  00 


CASH   RECEIPTS. 


From    J.    L.,   administrator,  on  distribution  of  the  estate  of 

said  E.  D.,  dec'd.. 

interest  on  U.  S.  bonds 

1  mo's  rent  of  house  in  Glendale 

quarterly  dividend  L.  M.  R.  R.  bonds 

3  mo's  rent  house  in  Glendale 

interest  on  U.  S.  bonds 

quarterly  dividend  L.  M.  R.  R  bonds 

1   year's  rent  of   farm  in  Green  township,  Hamilton 

County,  Ohio 

3  mo's  rent  of  house  in  Glendale  

amount  of  note  of  H.  S 

interest  at  6  per  cent.,  1  year 

quarterly  dividend  L.  M.  R.  R.  bonds 

3  mo's  rent  of  house  in  Glendale 

interest  on  U.  S.  bonds 

quarterly  dividends  L.  M.  R.  R.  bonds 

interest  6n  U.  S.  bonds 

3  mo's  rent  of  house  in  Glendale 

quarterly  dividend  L.  M.  R.  R.  bonds 


3  mo's  rent  of  house  in  Glendale 

interest  on  U.  S.  bonds 

quarterly  dividend  in  L.  M.  R.  R.  bonds.. 
1  year's  rent  of  farm  in  Green  township. 

for  fallen  timber,  Green  township 

3  mo's  rent  of  house  in  Glendale 

interest  on  U.  S.  bonds.., 

quarterly  dividend  L.  M.  R.  R.  bonds — 

interest  on  IT.  S.  bonds 

3  mo's  rent  of  house  in  Glendale.. 

quarterly  dividend.  L.  M.  R.  R.  bonds  — 


Total  Cash  Receipts 

Total  expended  and  invested  (see  next  page) 

Balance  of  cash  on  hand,  Sept.  10, 1880 — 


1,080 
10 


•££0 

10 
28 

350 

225 

1,160 

69 

28 

22.' 

10 


28 

225 
10 
28 

350 
32 

225 
10 
28 
10 


225  00 
28  00 


4,985 
4,755 


230 


CHAP. 


9] 


ACCOUNT    OP    GUARDIAN,    ETC. 


157 


of  C.  D.,  minor  child  of  E.  _D.,  dec'd.,  with  estate  of  said  minor 


Expenditures. 


1878. 

Sept.    1.. 

"     20.. 

Dec.  10.. 

"     10.. 

"     10.. 

"     19. 

March   1 

1879. 

Feb.     16 

16, 

"        16 

27, 

27, 

Sept.  1. . . 

"      1... 

"      1... 

"      1... 

"  1.... 
1.... 
15.. 

"     15.. 

"      15.. 

"      15.. 
1880. 
Jan.  10. . . 

"    10.... 

"    10.. 
May     1.. 
June  25 . . 


Dec. 


Sept. 


1879. 
Dec.  10... 

1880. 
Aug.  1.... 


1880. 
Sept.  18.. 


Paid,  probate  court,  letters  of  guardianship. 

"      probate  court,  riling  inventory 

"      taxes  on  farm  in  Greene  towns'p 

"      taxes  on  house  in  Glendale 

"      on  personal  property 

"      repairing  house  in  Glendale 

"      back  taxes,  Louisiana  land 


repairing  fences  on  farm 

repairing  barn  on  farm 

suit  of  clothing  for  ward 

underclothing    "        "     

repairing  shoes    "        "     

tuition  and  room  rent  at  college 

car  fare  :  furnishing  ward's  room  at  college. 

cash  to  ward  for  incidentals. 

boarding  for  ward 

suits  of  clothing,  underwear,  etc.,  for  ward  . 

boots  and  shoes  for  ward  

books  and  stationery  for  ward. 

taxes  on  Louisiana  land 

taxes  on  farm  in  Greene  township 

taxes  on  house  in  Glendale 

taxes  on  personal  property 


bills  for  clothing  for  ward 

cash  to  ward  for  incidentals 

boarding  for  ward 

boarding    "        " 

cash  to  ward  for  traveling  expenses  home,  and 

incidentals 

clothing  for  ward   

ward's  tuition  and  room  rent  at  college 

books  and  sundries  for  ward 

boarding  and  sundries  for  ward 

cash  to  ward  for  incidentals 

ward's  car  fare,  etc.,  to  college 

guardian's    compensation   for   all  services   to 

date 

tax  on  Louisiana  land  . ! . . 


Voucher, 


9 
10 
11 
12 
13 
14-16 
17 
18 
19 
20 
21 
22 
23 
24 
25 

26 
27 
28 
29 

30 
31 
32 
33 
34 
35 
36 

37 
38 


Total  expenditures 

Loaned  cash  to  M.  D.,  on  mortgage  note,  at  7  per  cent.,  paya- 
ble annually 

Purchased,  as  investment,  U.  S.  Government  bond 


Total  expended  and  invested. 


STATEMENT  OF  ASSETS  OTHER  THAN  REAL  ESTATE,  NOW  ON  HAND. 

Cash , 


U.  S  Government  bonds. 

L.  M.  R.  R.  bonds 

Mortgage  note  of  M.  D.. 


Total. 


4 
1 
31 
212 
49 
66 
25 

28 


1 

120 

in:. 
10 

245 
42 
Id 
20 
1 
31 

250 


45 

5 
60 

60 

15 
30 

120 
40 

245 
15 
20 

160 
1 


2,255 

1,500 
1,000 


$230  35 

2,000  00 
1,400  00 
1,50000, 

5,13035 


15S  .  ACCOUNT  OF  GUARDIAN.   ETC.         [CM  AP.  9,    1 G-21 . 

16.  The  entries  showing  the  balance  of  cash,  bonds,  stocks  and 
other  property  in  the  hands  of  the  guardian,  should  he  carried 
to  the  next  account,  and  should  be  the  first  entries  therein. 

17.  The  final  account  must  show  that  the  guardian  has  settled 
with  and  paid  to  the  ward  all  the  remaining  and  unexpended 
money  and  property  which  came  to  the  possession  of  the 
guardian. 

18-21.  Bail  debts,  how  noted.  Should  there  be  uucollectible 
dehts,  they  may  be  noted  as  follows  in  the  final  account: 

"  The  following  debts  were  uncollectible,  and  are  still  due, 
though  every  proper  and  reasonable  effort  has  been  made  to 
collect  them  : 

From  B.  C,  rent  of  Avondale  house  for  Jan- 
uary  and    February  of   18 — ,  at  $25.00    per 

month $50.00 

From   J.    L.,    admr.   as    aforesaid,  said    ward's 
share  of  the  estate  of  said  E.  D.,  not  paid  over 

to  said  guardian 870.00 

(Etc.,  etc.) 

"Said  B.  C,  though  previously  a  good  tenant,  failed  in 
business  in  December,  18 — ,  with  no  assets  whatever  which  his 
creditors  could  obtain,  as  proceedings  against  him  by  other  cred- 
itors demonstrated  ;  and  therefore,  though  said  guardian  often 
asked  for  the  payment  of  said  $50,  no  legal  proceedings  were 
ever  had  to  recover  it. 

'Said  administrator  failed  to  pay  over  a  large  amount  of 
money  belonging  to  said  estate,  for  which  said  guardian,  with 
others,  brought  suit  on  his  bond,  which  proved  to  be  of  no  use, 
as  will  be  seen  by  reference  to  records  and  papers  in  case  No. 
,  of  the  court  of  common  pleas  of  this  county. 

"  (Etc.,  etc.)  " 

22.  Ox*,  the  guardian  can  chai'ge  himself  with  these  items  on 
the  debtor  side  of  the  account,  and  credit  himself  with  them  on 
the  other  side,  And  explain  them  in  a  foot-note,  or  in  any  other 
clear  and  satisfactory  way.1 

XA  guardian  is  presumably  liable  to  his  ward  for  the  nominal  amount  of 
debts  due  his  ward's  estate,  which  he  has  failed  to  collect;  if  they  were  not 


CHAP.   9,  22-27.]  PAY    OF   GUARDIAN,    ETC.  159 

23.  Guardian  must  make  affidavit  to  the  account — its  form.  The 
guardian  must  make  oath  to  the  account,  which  oath  may  be  in 
form  as  follows : 

24-5.  The  State  of  Ohio, county,  ss: 

A.  B.,  guardian  of  0.  D.,  a  minor,  being  duly  sworn,  says  that 
the  foi-egoing  account  is  in  all  respects  true,  just  and  correct,  to 
the  best  of  his  knowledge  and  belief.  [If  any  property  sold  at 
private  sale  by  order  of  court  is  therein  accounted  for,  here  add~] 
and  that  the  private  sale  of  the  property  therein  mentioned  as 
made  by  order  of  court,  was  made  after  diligent  endeavor  to 
obtain  the  best  price  for  the  same,  and  that  the  sale  reported 
is  for  the  highest  price  that  could  be  obtained  for  said  property. 

A.  B. 

Sworn  to  and  subscribed  before  me,  this  day  of  , 

18—.  A.  C,  Probate  Judge. 

26.  Form  of  Journal  Entry  when  the  Accounts  are  Filed. 
In  the  matter  of  the  guardianship  of  CD. 
This  day  came  A.  B.,  guardian  of  said  C.  D.,  and  filed  his  ac- 
counts, as  such  guardian,  for  partial  [or,  final]  settlement. 

COMPENSATION    OF    GUARDIAN. 

27.  The  amount  of  guardian's  compensation.  The  statute  fixes 
no  definite  amount  or  mode  of  ascertaining  what  compensation 
shall  be  allowed  to  the  guardian  for  his  services,  but  this  is  left 
wholly  to  the  judgment  and  discretion  of  the  court.  It  is  sim- 
ply provided  that  every  guardian  shall  be  allowed  by  the  court 
settling  his  accounts,  the  amount  of  all  his  reasonable  expenses 
incurred  in  the  execution  of  his  trust;  and  also  such  compensa- 
tion for  his  services  as  the  court  shall  deem  reasonable.1 

28.  Ordinarily,  perhaps,  as  good  a  rule  as  carl  be  adopted,  at 
least  where  the  guardianship  is  of  short  continuance,  is  to  allow 
the  same  fees  as  are  allowed  to  executors  and  administrators, 
which  is  six  per  centum  on  the  first  thousand  dollars,  four  per 

collectible  for  their  face,  that  is  for  him  to  show  in  defense.      Seigler  v. 
same,  7  S.  C.  (1876)  317. 

1  g  6288.     See  note  3,  p.  153;   also  12  Law  Bui.  59. 
11 


160  ACCOUNT  OF  GUARDIAN,  ETC.  [CHAP.  6.  29-32. 

centum  on  all  over  that  and  not  exceeding  five  thousand  dollars, 
and  two  percentum  on  all  over  that  amount. 

29.  Tnese  percentages  are  what  would  properly  be  allowed 
once  only  on  the  principal  of  the  ward's  estate,  after  which  the 
percentage  should  be  on  the  income  only  ; 1  otherwise,  by  making 
short  investments,  and  re-collecting  frequently,  the  estate  would 
soon  all  be  the  guardian's,  and  not  the  ward's.  For  extra- 
ordinary, services  or  trouble,  such  additional  sum  as  under  all 
the  circumstances  is  thought  by  the  court  reasonable  and 
proper.'2 

30.  But  no  absolute  rule  can  be  given,  cither  for  ordinary  or 
extraordinary  services.  The  court  must  estimate  these  services 
from  all  the  circumstances  of  the  particular  case,  taking  into 
consideration  the  trouble  incident  to  the  guardianship,  whether 
of  the  person  or  estate,  or  both,  the  responsibility  of  the  guar- 
dian in  handling  the  moneys  ;  of  training,  educating,  and  caring 
for  the  person  of  the  ward;  and  the  fact  whether  these  things 
have  been  faithfully  done,  etc.,  etc. 

31.  For  care  of  real  estate.  The  trouble  incident  to  the  care 
of  real  estate  is  also  a  proper  subject  to  be  considered  in  fixing 
the  compensation. 

32.  For  taxes  paid,  etc.  The  guardian  is  entitled  to  his 
expenses,    and    a   reasonable   compensation    for    his   time   and 

1  Where  more  than  one  account  is  filed  by  an  executor  or  administrator,  the 
rule  for  the  allowance  of  commissions  remains  unchanged.  Upon  the  filing 
of  the  second,  or  any  subsequent  account,  the  computation  is  taken  up 
where  left  by  the  preceding  account,  and  the  money  contained  in  the 
preceding  account,  or  accounts,  is  added  to  what  is  subsequently  ac- 
counted for,  and  the  computation  of  the  commissions  is  made  as  though 
the  moneys  were  all  comprehended  in  one  account.  For  example: 
If  an  estate  amount  to  six  thousand  dollars;  and  in  the  first  account  nine 
hundred  dollars  be  accounted  for;  in  the  second, four  thousand  dollars,  and 
in  the  third  and  final  one,  eleven  hundred  dollars ;  on  the  settlement  of  the 
first  account,  the  commissions  would  be  six  per  cent. ;  of  the  second,  six 
per  cent,  on  one  hundred  dollars,  and  four  per  cent,  on  three  thousand  nine 
hundred  dollars;  and  of  the  third,  four  per  cent,  upon  one  hundred  dollars, 
and  two  per  cent,  on  the  residue.  But  an  executor  or  administrator  may 
claim  compensation  for  extra  services  upon  the  filing  of  every  account. 
Raff's  Guide,  page  160. 

2  See  note  3,  page  153,  as  to  compensation  for  special  services  as  attorney. 


CHAP.  9,  33-37.]        ACCOUNT  OF  GUARDIAN,  ETC.  161 

trouble   in    listing   lands   for   taxation,    and   paying   the    taxes 
thereon.1 

33.  When  no  compensation  allowed.— But  if  the  guardian  fails 
to  render,  upon  oath,  to  the  proper  court,  an  account  of  his  re- 
ceipts and  expenditures  as  such  guardian,  verified  by  vouchers 
or  proof,  at  least  once  in  every  two  years,  he  will,  unless  excused 
by  court,  receive  no  allowance  for  bis  services.  This  is  the  per- 
emptory command  of  the  law.2 

34.  Compensation  of  guardian's  executor,  etc. — As  already 
stated,  if  the  guardian  dies  before  settlement  of  his  accounts, 
and  his  executor  or  administrator  settles  them,  such  executor  or 
administrator  making  such  settlement  must  be  allowed  such  com- 
pensation for  the  same  as  the  court  with  which  the  settlement  is 
made  shall  deem  reasonable.3  In  such  case  there  should  un- 
doubtedly be  an  apportionment  of  the  compensation,  and  the 
deceased  guardian's  actual  necessary  expenses  incurred  as  guar- 
dian, and  a  reasonable  compensation  for  his  services  to  the  time 
of  his  death,  should  be  allowed  to  his  estate. 

35.  Notice  of  filing  accounts  to  be  published. — It  is  the  duty  of 
the  probate  judge  to  cause  notice  to  be  published  in  some  news- 
paper of  the  county,  of  the  filing  of  any  accounts  by  guardians 
and  trustees,  specifying  the  time  when  such  accounts  will  be 
heard,  which  must  not  be  less  than  three  weeks  after  the  publi- 
cation of  such  notice.  The  probate  judge  may  then,  for  cause, 
allow  further  time  to  file  exceptions  to  said  accounts  ;  and  the 
costs  of  such  notice  must  be  paid,  if  more  than  one  account  be 
specified  in  the  same  notice,  in  equal  proportions  by  the  guar- 
dians or  trustees,  respectively.* 

36.  Who  may  file  exceptions  to  account. — Any  person  interested 
in  such  account  may  file  exceptions  to  it  at  any  time  before  the 
day  set  for  the  hearing,  pointing  out  the  particular  items  ex- 
cepted to. 

37.  The  hearing. — When  the  day  of  hearing  arrives,  the  judge 
should  examine  closely  the  account,  and  compare  the  same  with 


1  See  par.  8,  chap.  8. 

2  See  par.  8,  chap.  5. 

3  See  par.  11,  chap.  4. 
*  §  6402. 


162  ACCOUNT  OF  GUARDIAN,  ETC.  [dlAP.  9,  38-40. 

the  vouchers,  and  see  that  the  footing  of  figures  are  all  correct ; 
and  this  the  judge  should  do  whether  exceptions  are  filed  or 
not. 

38.  Examination  Sf  accountants  under  oath. — The  probate  judge 
has  full  power  and  authority  to  examine  guardians  and  trustees 
under  oath  touching  their  accounts  ;  and  if  he  thinks  proper  to 
do  so,  he  may  reduce  such  examination  to  writing,  and  require 
such  guardian  or  trustee  to  sign  the  same  ;  and  such  examination 
must  be  filed  with  the  papers  in  the  ease.1 

39.  Guardian  and  ward  can  not  sue  each  other,  until. — It  may 
be  remarked  here  that  a  guardian  is  not  liable  in  an  action  by  his 
ward,  until  he  has  been  called  on  by  the  judge  of  probate  to  set- 
tle his  account,  and  has  refused  ;  or  has  settled,  and  a  balance  has 
been  found  due  to  the  ward.2 

40.  And  on  the  other  hand,  if  the  guardian  has  advanced 
money  for  his  ward,  he  can  not  sue  his  ward  therefor,  when  he 
arrives  at  full  age,  but  must  have  it  adjusted  by  a  settlement  of 
his  accounts  with  the  probate  court.3 

1  \  6403. 

2Schouler's  Dom.  Rel.  502,  506;  also  Gibbs  v.  Lum,  29  La.  Ann.  (1877). 
526;  38  O.  S.  430;   12  W.  L.  B.  197.     See  par.  65  and  note  2,  p.  178. 

3  Davis  v.  Ford,  7  O.  2d  pt,  104,  109.  See  more  fully  note  1,  page  165, 
166;  also  Schouler's  Dom.  Rel.  502. 

A  guardian  may,  in  his  account,  filed  for  settlement  in  the  probate  court, 
charge  all  proper  debts  due  him  from  his  ward,  although  accruing  prior  to 
the  guardianship.  Such  accounts  will  be  scrutinized  with  great  jealousy, 
but  they  must  be  settled  in  that  way,  since  the  guardian  can  not  sue  his 
ward  or  himself.  Such  accounts  may  be  filed  for  settlement  at  any  time 
when  the  probate  judge  will  receive  them.  When  so  filed,  the  probate  judge 
has  no  discretion  to  refuse  to  settle  them,  though  he  disallowed  items  not 
proper  charges,  and  he  must  receive  such  account  once  in  every  two  years 
at  least,  and  whenever  guardianship  is  terminated.  If  the  probate  judge 
refuse  to  settle  such  account,  and  dismiss  it  for  want  of  jurisdiction,  there  is 
no  remedy  by  appeal  to  the  common  pleas.  The  remedy  is  by  mandamus 
to  require  the  judge  to  proceed  and  settle  the  account.  A  resignation  of  the 
guardian  does  not  abate  the  proceeding  on  the  account,  but  the  court  should 
proceed  to  settle  it.  The  probate  court  exercises  but  a  limited  jurisdiction, 
but  having  power  to  settle  guardian's  accounts,  would  generally  follow  the 
analogies  of  the  chancery  jurisdiction  over  the  same  subject.  And  in  chan- 
cery, allowances  for  maintenance  and  repairs  will  be  limited  to  the  income 
of  an  estate,  unless  made  on  order  of  the  chancellor,  or  unless  very  pecu- 


CHAP.  9,  41-42.]        ACCOUNT    OP   GUARDIAN,  ETC.  163 

41.  When  to  settle  with  ward,  and  take  his  receipt. — Some  pro- 
bate judges  direct  the  guardian  to  settle  in  full  with  his  ward 
after  he  arrives  of  age,  file  his  receipt  as  a  voucher,  and  to  pre- 
sent the  final  account  closed  up,  the  judge  of  course  reserving 
the  right  to  review  and  change  the  account.  Other  judges  re- 
quire the  guardian  to  come  to  court  with  his  vouchers  and  his 
account  completed,  except  as  to  his  compensation  and  the  amount 
due  the  ward,  the  respective  amounts  of  which  the  court  decides. 
I  n  such  case,  the  guardian  must  afterward  pay  the  ward  the 
amount  so  found  due,  and  take  his  receipt  therefor.  The  account 
may  be  kept  open  by  the  court  till  such  receipt  is  obtained  and 
filed,  thus  completing  the  account.1 

42.  Or  such  account  may  be  treated  as  an  account  current,  and 
a  final  account,  showing  such  receipt,  may  be  filed  later. 

liar  circumstances  exist,  when  claims  incurred  by  a  guardian  without  au- 
thority, beyond  the  income,  may  be  allowed  as  a  charge  on  the  principal. 
Walker  &  Bates  Digest,  art.  Guardian. 

1  One  standing  in  the  relation  of  a  parent  and  guardian  in  fact,  of  a  minor, 
having  the  custody  and  control  of  such  minor,  and  of  his  property  during 
such  minority,  is  bound  to  the  most  scrupulous  good  faith  in  the  manage- 
ment of  the  estate,  and  where,  on  such  minor's  coming  of  age,  he  attempts  to 
make  a  settlement  of  his  trust  with  him,  a  court  of  equity  will  examine  the 
transaction  with  extreme  jealousy,  to  see  that  no  undue  influence  has  been 
exercised,  that  the  parties  have  been  put  on  an  equal  footing,  by  full  dis- 
closures, and  that  no  advantage  has  been  taken.  Berkmyer  v.  Kellerman, 
32  0.  S.  239. 

Where  a  party  occupying  such  a  relation,  claims  any  benefit  or  advantage 
from  a  settlement  with  his  ward  on  his  coming  of  age,  of  his  trust  transac- 
tions, the  burden  of  proof  is  on  him  to  show  that  he  has  made  full  disclos- 
ures, that  he  has  exercised  no  undue  influence,  and  that  such  settlement  is 
fair  and  equitable.     76. 

A  conveyance  by  such  minor  on  the  day  he  comes  of  age,  of  all  of  his  real 
estate  to  the  persons  occupying  such  relations,  in  execution  of  such  a  settle- 
ment made  for  such  minor  by  others  not  authorized  to  bind  it,  and  while  he  is 
still  under  their  influence  and  control,  and  not  advised  of  his  rights,  is  not 
binding,  and  can  only  be  upheld  in  a  court  of  equity  by  clear  proof,  that 
under  all  the  circumstances  it  is  just  and  equitable.     lb. 

If  the  settlement  relied  on  to  uphold  such  conveyance  embraces  distinct 
and  several  claims  of  two  or  more,  who  hold  such  relations  to  the  child,  such 
conveyance  may  be  sustained  as  to  one,  and  set  aside  as  to  the  others,  ac- 


164  ACCOUNT    OF    GUARDIAN,  ETC.       [CHAP.  9,  43-47. 

43—46.  Form  of  Journal  Entry  of  Confirmation  of  Accounts 

In  the  matter  of  the  guardianship  of  C.  D. 

Notice  of  the  filing  of  the  account  of  A.  B.,  as  guardian  of 
C.  D.,  heretofore  filed  for  partial   [or,  finalj  settlement,  having 

been  duly  given  by  publication  in ,  a  newspaper  of  this 

county,  and  this  day  being  the  day  named  therein  for  a  hearing 
of  said  account,  the  same  came  on  this  day  to  be  heard ; *  and 
no  exceptions  thereto  being  filed,  the  court  carefully  examined 
the  same,  and  finding  it  in  all  things  true  and  correct,  it  is  or- 
dered that  the  same  be  and  it  is  hereby  confirmed  and  settled. 

And  the  court  does  further  find  that  there  is  in  said  guardian's 

hands  none  of  said  ward's  money  [or>  a  balance  of dollars 

of  said  ward's  money  ;  and  if  on  an  account  intended  to  be  final,  add, 
which  he  is  hereby  ordered  to  pay  to  said  C.  D  ,  or  ivhomsoever  is 
entitled  thereto.'] 

47.  [Or,  if  there  be  exceptions  filed  and  overruled,  begin  at  tlie--', 
ami  say:"]  Upon  the  account  and  the  exceptions  thereto  file-d  by 

.  and  having  heard  the  testimony,  and  the  court  being 

fully  advised  in  the  premises,*  finds  that  the  said  exceptions  are 
not  well  taken,  but  that  said  account  is  true  and  correct;  where- 
cording  as  the  equity  of  the  ease  will  warrant.  lb-  See  also  notes  on  pp. 
82,  165. 

Suit  on  a  guardian's  bond,  Held:  1.  A  receipt  signed  by  a  ward  after 
he  became  of  legal  age,  acknowledging  that  he  had  received  from  his  guar- 
dian a  certain  sum  "in  full  of  all  demands,"  etc.,  was  not  conclusive  evi- 
dence of  a  settlement  between  the  guardian  and  ward,  and  could  be  ex- 
plained or  contradicted  by  parol  evidence.  2.  The  final  report  of  the  guar- 
dian, which  had  not  been  allowed  and  approved  by  the  court,  was  not  com 
petent  evidence  to  show  a  settlement.  If  the  facts  in  the  case  were  true, 
the  guardian  was  a  competent  witness  to  prove  them;  but  his  simple  ex 
parte  statement,  though  verified  by  oath,  was  not  competent  evidence  to 
prove  such  facts.  The  unapproved  and  allowed  report  was  nothing  but  an 
ex  parte  sworn  statement.  Beedle  v.  State,  ex  rel.  (Sup.  Ct.  Ind.,  Nov.  '78.) 
3  Cin.  Law  Bui.  902. 

Where  a  ward,  on  coming  of  age,  joined  with  her  brothers,  sisters,  mother, 
and  step-father  in  executing  a  release  of  a  farm,  etc.,  to  her  guardian,  who 
was  her  eldest  brother,  in  order  to  carry  out  a  family  arrangement  of  what 
had  before  been  done,  Held:  that  the  ordinary  presumption  as  to  a  release 
"from  a  ward  just  out  of  the  leading  strings"  did  not  apply.  Cowan's  Ap- 
peal, 74  Pa.  St.,  329. 


CHAP.  9,  48-51.]   ACCOUNT  OF  GUARDIAN,  ETC.  165 

upon  it  is  ordered,  that  the  said  account  ought  to  be  and  it  is 
hereby  confirmed  and  settled.  [If  the  facts  require  it,  add:  And 
the  court  further  finds,  that  there  is  remaining  in  the  hands  of  said 

guardian,  a  balance  of dollars  of  his  ward's  moneys;   ami  if  on 

an  account  intended  to  be  final,  add,  which  he  is  hereby  ordered  to 
pay  to  whomsoever  is  entitled  tlieretoj. 

48.  [Or,  if  the  exceptions  are  allowed,  proceed  as  in  the  last  form 
to  the  *,  and  then  say:'}  do  find  that  the  exceptions  are  well  taken, 
and  they  are  therefore  allowed  ;  and  the  court  further  find  that 
in  all  else,  the  said  account  is  true  and  correct ;  whereupon  it  is 
ordered  that  the  items  objected  to  in  said  exceptions  be  not  al- 
lowed in  said  account,  and  that  in  all  things  else  the  same  be 
and  it  is  hereby  confirmed  and  settled.  And  the  court  further 
find  that  there  is  remaining  in  the  said  guardian's  hands  a  bal- 
ance  of  dollars   of  said   ward's    mouevs  ;   [if  facts  require  it, 

conclude  as  before.} 

49.  To  whom  guardian  must  pay  balance  in  hand  at  settlement. — When 
a  settlement  intended  to  be  final  is  made,  and  an  amount  is  found 
in  the  hands  of  the  guardian,  he  must  pay  that  balance  over  to  the 
ward, if  or'  full  age;  or  to  the. succeeding  guardian,  if  one  be  ap- 
pointed, the  ward  not  being  of  age;  or  to  the  administrator  of 
the  ward,  if  dead,  whether  of  age  or  not;  or  into  court,  if  the  court 
so  order  it  to  be  done;  and  in  cither  case  the  guardian  should 
take  a  receipt  therefor,  and  then  file  a  final  account. 

50.  Effect  of  settlement  with  court. — The  settlement  made  in  the 
probate  court  of  the  accounts  of  a  guardian  will  be  final  between 
him  and  his  ward,  unless  an  appeal  be  taken  therefrom  to  the  court 
of  common  pleas  in  the  manner  provided  by  law.1 

51.  When  and  how  ward  may  review  the  settlement. — But  any 
such    ward    has  the  right  of   opening  and   reviewing  such  settle- 

1  jj  6289.  Astoappeals,  see,  chap.  24.  As  to  compelling  payment,  see  p. 
182. 

The  account  required  of  the  guardian,  to  be  rendered  at  least  every  two 
years  to  the  probate  court,  when  rendered  and  judicially  passed  on  by  the 
court,  is  a  settlement  within  the  meaning  of  section  31  (6289);  and  under 
the  provisions  of  that  section,  every  settlement  is  final  between  the  guardian 
and  ward,  unless  an  appeal  is  taken  therefrom,  or  it  is  opened  under  the 
provisions  of  that  section.     Woodmansie  v.  Woodmansie,  32  ().  S.     18. 

When  a  guardian  closes  his  account  with  his  ward,  by  filing  a  flnal  settle- 
ment in  the  probate  court,  an  amount  being  due  his  ward,  for  which  he  in- 


166  ACCOUNT   OF   GUARDIAN,  ETC.  [CIIAP.  9. 

ment,  for  fraud  or  manifesl  mistake,  by  civil  action  in  the  court 
of  common  pleas  of  the  county  in  which  such  settlement  was 
math',  or  the  county  where  such  guardian  may  reside  when  the 
petition  is  filed,  at  the  option  of  the  plaintiff  in  such  action,  at 
any  time  within  two  years  alter  the  said  ward  shall  arrive  at 
full  age.1     A.s  to  compelling  payment,  see  par.  81,  chap.  10. 

duces  her  to  sign  a  receipt  as  for  money  paid,  he  agreeing  to  he  responsible 
to  her  for  the  amount,  with  interest,  an  action  may  be  maintained  upon  such 
agreement  by  the  ward,  and  the  sum  actually  due  recovered  from  the  guard- 
ian, without  in  any  way  opening  or  reviewing  the  accounts*  winch  had  been 
settled  in  the  probate  court.     Lindsay  v.  Lindsay,  28  0.  S.  157. 

A  guardian  can  not  sustain  an  action  against  his  ward  while  the  relation 
of  guardian  and  ward  subsists,  tin-  advances  made  to  his  ward,  as  evidenced 
by  a  balance  due  to  him  on  settlement  with  the  court.  Davis  v.  Ford,  7  O. 
2  pt.  104.  The  action  to  recover  any  balance  that  may  be  due  him  from  his 
late  ward  must  be  brought  in  the  proper  court,  after  such  balance  is  declared 
in  the  probate  court,  and  after  the  relation  between  them  ceases  to 
subsist,     lb- 

But  a  guardian  may,  in  his  account  filed  for  settlement  in  the  probate 
court,  charge  all  proper  debts  due  from  his  ward,  although  accruing  prior  to 
the  guardianship;  for  he  can  not  bring  an  action  against  himself  or  his 
ward  while  the  relation  continues.  When  so  filed,  the  probate  judge  has  no 
discretion  to  refuse  to  settle  them,  though  he  should  scrutinize  them  with 
great  jealousy,  and  disallow  items  which  are  not  proper  charges.     lb. 

After  a  ward  becomes  of  age,  he  stands  in  the  relation  of  creditor  to  his 
guardian.  His  cause  of  action  is  then  complete;  and  if  he  fails  to  bring 
suit  within  the  time  limited  by  statute  thereafter,  the  claim  is  barred.  Cole- 
man v.  Willis,  46  M.  236. 

The  accounts  rendered  from  time  to  time  by  a  guardian  during  ward's 
minority,  and  approved  by  the  probate  court,  are  only  prima  facie  correct, 
and  do  not  bind  the  ward  when  he  is  able  to  show  that  they  are  erroneous. 
Willis  v.  Fox,  25  Wis.  646. 

1  \  6289.  In  the  absence  of  fraud,  account  can  not  be  attacked  by  ward 
after  two  years.     High  v.  Snedicor,  57  Ala.  403.     See  25  Wis.  r>46,  ahove. 

Only  upon  clear  and  satisfactory  proof  will  a  final  settlement,  made  by  a 
guardian  with  his  ward  after  she  has  arrived  at  majority,  be  impeached  after 
a  lapse  of  a  long  interval  of  time — as  here,  nearly  a  quarter  of  a  century. 
Railsback  v.  Williamson,  88  111.  494. 

The  final  settlement  of  a  guardian  made  in  the  probate  court,  unless  re- 
voked, reopened  or  appealed  from,  is  conclusive  upon  the  parties  ;  it  can  not 
be  attacked  collaterally,  in  a  suit  by  the  ward  on  the  guardian's  bond,  for 
the  allowance  to  a  third  person  of  an  unjust  and  fraudulent  claim  in  sucb 
settlement.     Holland  V  State,  48  Ind.  391. 


CHAP.  9,  52-56.]   ACCOUNT  OP  GUARDIAN,  ETC.  1G7 

52.  Guardian  should  get  final  release  from  ward.  After  the 
guardian  has  fully  settled  his  accounts  and  paid  over  any  balance 
due  to  the  ward,  and  taken  a  receipt  therefor,  it  would  be  good 
and  prudent  practice  to  ask  the  late  ward,  some  time  after  the 
settlement,  to  examine,  in  person,  or  with  an  accountant  or  at- 
torney, the  accounts  to  his  own  satisfaction,  and  if  explanations 
are  then  wanted,  to  ask  for  them  ;  and  if  all  matters  are  found 
to  be  satisfactory,  then  to  give  to  the  guardian  a  full  release1  and 
discharge  from  all  obligations  arising  from  the  guardianship. 

53.  Form  of.     Such  release' might  be  in  form  as  follows,  or  be 
i  varied  to  suit  the  facts : 

54.  1  have  examined,  in  person  {or,  by  attorney;  or,  in  per- 
son and  with  the  assistance  of  H.  M.,  my  attorney)  the  accounts 
and  final  settlement  of  A.  B.,  my  late  guardian,  and  find  said 
accounts  and  settlement  to  be  in  full,  just,  fair,  and  satisfactory; 
and  for  a  valuable  consideration  to  me  paid,  I  hereby  release  him 
from  any  further  obligations  on  account  of  or  arising  from  his 
relations  to  me  as  said  guardian. 

(Date)  C.  D. 

55.  Such  release  no  defense,  when.  Such  a  release  would  not 
protect  the  guardian  from  any  fraud,  deception,  or  manifest  mis- 
take.2      " 

56.  Notice  of  filing  accounts,  etc. — Paragraphs  20-24,  pp.  256-7, 
are  applicable  to  the  accounts  considered  in  this  chapter. 

1 A  valid  release  from  the  ward,  absolving  the  guardian  from  all  liability 
to  account,  and  her  acceptance  of  the  consideration  of  the  release,  in  satis- 
faction of  her  demands,  bars  her  of  all  right  to  call  him  to  account  for  the 
profits  derived  from  the  unauthorized  use  of  her  estate.  Satterfield  v.  John, 
53  Ala.  127;  Cheever  v.  Congdon,  34  Mich.  296. 

2  Lindsay  v.  Lindsay,  28  0.  S.  157;  Beedle  v.  State,  62  Tnd.  26;  Bruce  v. 
Doolittle,  81  111.  103;  Monnin  v.  Beroujon,  51  Ala.  196;  Traders.  Lowe,  45 
Md.  1;  Womackv.  Austin,  1  S.  C.  421. 

"As  before  stated,  a  release  executed  upon  proper  advice,  with  ample 
time  for  mature  deliberation,  and  upon  full  information,  is  prima  facii 
valid;  and  the  burden  is  upon  the  party  disputing  it  to  impeach  it."  Perry 
on  Trusts,  §  923. 


168 


EXCEPTIONS  TO  BOND,  ETC. 


[CHAP.  10 


CHAPTER  10. 


BOND. 

EXCEPTIONS  TO — RELEASE  FROM — SUITS  ON. 


Tar. 

EXCEPTIONS    TO    THE    BOND. 

1.  Already  treated  in  part. 

2.  Who  may  file  exceptions,  and 
when. 

3-G.  Form  of  exceptions. 
7.  Notice  must  be  given  to  guar- 
dian. 
8-9.  How  served. 
10-U.  Form  of  notice. 

15.  When  served. 

16.  By  whom  served,  and  how  ser- 
vice proved. 

17-20.  Form  of  affidavit  in  proof  of 
service. 

21.  Adjournments. 

22-23.  Form  of  journal  entry  of  ad- 
journments. 

24.  Final  hearing. 

25.  Court  may  require  additional 
sureties,  etc. 

26-28.   Form  of  journal  entry. 

29.  If  exceptions  sustained,  what. 

30-32.  Form  of  journal  entry,  sus- 
taining exceptions,  revoking 
letters,  and  assessing  costs. 

33.  Costs,  who  to  pay. 

34.  Court    must  act  of  its   own    mo- 

tion. 

35.  Guardians  right  to  notice,  etc.,  in 
such  case  also. 

THE    RELEASE    OF    SURETIES. 

36.  How  surety  of  guardian  re- 
leased. 

37-39.  Form  of  the  request  to  be  re- 
leased as  surety. 


Par. 

40-45.  Form  of  notice  to  the  guar- 
dian. 
46.  The  service  of  such  notice. 
47-49.  The  form  of  the  affidavit  of 

service. 
50.  Journal  entries. 
51-52.  Form  of  entry  noting  the  fil 

ing  of  the  request. 
53-54.  Form  of  entry  requiring  new 

bond. 
55.  Entries  when  new  bond  given. 
56-57.  Form  of  entry  where  the  bond 

is  approved. 
58.  Guardian  removed,  if  bond  not 

given. 
59-60.  Form  of  journal  entry  where 

bond    is   not    approved    or   not 

given. 

61.  As  to  release  of  sureties,  if  guar- 
dian removed. 

62.  New  guardian  should  be  at-once 
appointed. 

63.  Extent  of  old  surety's  liability. 

64.  As  to  joint  bonds. 


SUITS   ON   THE   BOND. 

65.  How  suit  on  bond  brought,  and 
by  whom. 

66.  Effect  of  judgment. 

67-69.  Extent  of  remedy  by  suit  on 

bond. 
70.  Separate  liability  of  guardian. 
71-72.  Liability  of  the   sureties   on 

the  bond. 
73-75.  When  suit  on  guardian's  bond 

must  be  brought. 


CHAP.  10,  1-7.]  EXCEPTIONS  TO  BOND,  ETC.  169 

Par.  Par. 

76.  Sureties  may  be  made  parties  to  82-88.  Form  of  petition  by  ward  in 
judgment.  such  case. 

77.  Where  guardian  may  be  sued.  89-93.  Form  of  petition  by  a  creditor 

78.  When  non-resident  guardian  may  of  the  ward. 

be  served  by  publication.  94.   Form  of  petition  in  other  cases. 

79.  Guardian  may  sue  in  his  own  95-99.  Form  of  citation  upon  petition 
name.  being  filed. 

80.  How  guardian's  bankruptcy  ef-  100.  How  to  proceed,  if  guardian 
fects  his  liability.  has  become  a  non-resident. 

81.  Special  proceedings  to  compel  101-103.  Form  of  notice  by  publi- 
guardian  to  pay  money  found  cation  in  suit  to  compel  distri- 
due  on  settlement.  bution. 

1.  Already  treated  in  part.  It  having  been  deemed  necessary 
to  specify  in  chapter  3,  paragraphs  37-89,  who  must  give  bond 
and  who  need  not,  its  form,  requisites,  and  certain  journal  entries 
concerning  it,  these  matters  need  not  be  again  mentioned  here. 

EXCEPTIONS   TO   THE    BOND. 

2.  Who  may  file  exceptions,  and  when.  At  any  time  after  the 
bond  has  been  given,  any  person,  whether  of  kin  to  the  ward  oi 
not,  who  may  judge  the  bond  to  be  insufficient,  may  appear  on 
behalf  of  the  minor,  in  the  court  where  the  appointment  of  the 
guardian  was  made,  and  there  file  exceptions  to  the  bond  of  such 
guardian,  as  to  the  sufficiency  of  the  amount  of  the  penalty 
thereof,  or  the  sureties  therein.1 

3-6.  Form  of  exceptions.    These  may  be  in  the  following  form  : 
Exceptions  taken  by  M.  JS\,  in  behalf  of  C.  D. ,  a  minor,  to  the 
bond  of  A.  B.,  as  his  guardian. 

And  now  comes  M.  N.,  on  behalf  of  said  minor,  and  excepts 
to  the  bond  of  said  guardian,  because,  (1.)  The  amount  of  the 
penalty  thereof  is  not  sufficient.  (2.)  The  sureties  are  not  suf- 
ficient. M.  N., 

For  C.  D. 

7.  Notice  of,  must  be  given  to  guardian.  When  the  exceptions 
are  so  filed,  notice  thereof  must  be  given  to  the  guardian  whose 
bond  is  excepted  to,  requiring  him  to  appear  before  the  court 

1§6261. 


170  EXCEPTIONS  TO  BOND,  ETC.  [CHAP.   10,  8-16. 

within  a  reasonable  time,  not  exceeding  ten  days,  and  show 
cause  against  the  allowance  of  the  exception.1 

8.  How  served.  The  law  provides  that  when  notice  of  any 
proceeding  in  a  probate  court  is  required  by  law,  or  deemed 
necessary  by  the  probate  judge,  and  the  manner  of  giving  the 
same  is  not  directed  by  statute,  the  probate  judge  must  order 
notice  of  such  proceedings  to  be  given  to  all  persons  interested 
therein,  in  such  manner  and  for  such  length  of  time  as  he  shall 
deem  reasonable.2 

9.  In  this  case  the  statute  fixes  the  time  within  the  limit  of 
ten  days,  but  not  the  form  of  the  notice,  nor  the  manner  of 
serving.     The  following 

10-14.  Form  of  notice — would  meet  all  the  requirements  of  1?he 
case,  the  court  therein  fixing  the  day  and  hour  of  hearing  the 
exceptions. 
To  A.  B.,  guardian  of  C.  D.  : 

You  are  hereby  notified,  that  on  the  day  of ,  A.  D. 

18  — ,  M.  N.,  on  behalf  of  the  said  C.  D.,  filed  in  the  probate 

court  of- county,  Ohio,  exceptions  to  your  bond  as  guardian 

of  C.  D.     You  are  therefore  required  to  appear  before  said  court 

on  the  day  of ,  a.  d.  18  — ,  at  —  o'clock,  — .  M.  [not 

exceeding  ten  days  from  the  date  of  the  notice'],  and  show  cause, 
if  any  you  have,  why  said  exceptions  should  not  be  allowed  by 
the  court,  and  you  be  required  to  give  further  security. 

Witness  my  hand  and  the  seal  of  said  court,  this day  of 

,  a.  d.  18—. 

[l.  s.]  A.  C, 

Probate  Judge,  etc- 

15.  Wlxen  served.  The  notice  should  be  served  upon  the  guard- 
ian without  delay,  as  he  will  otherwise  be  adjudged  not  to  have 
had  sufficient  time  to  prepare  himself  to  meet  the  exceptions, 
and  the  court  will  therefore  not  act  upon  them  on  the  day  fixed 
upon  in  the  notice. 

16.  By  whom  served,  and  how  service  proved.  The  notice  may 
be  served  and  returned  by  the  sheriff  of  the  proper  county,  as 

1§G261. 
2  §  6406 


CHAP.  10,  17-25.]        EXCEPTIONS    TO    BOND,  ETC.  171 

other  process  is  served  and  returned  by  him,  or  it  may  be  served 
by  the  person  taking  the  exceptions,  or  by  any  one  else.  If 
served  by  any  one  other  than  the  sheriff,  an  affidavit  of  service 
should  be  made  on  the  back  of  the  notice  by  the  person  making 
the  service,  and  returned  to  the  court  on  or  before  the  day  set 
for  the  hearing.  See  paragraph  8,  this  chapter. 

17-20.  Form  of  affidavit  in  proof  of  service.  Such  affidavit  may 
be  in  the  following  form  : 

The  State  of  Ohio,  county,  ss. 

M.  N.,  being  duly  sworn,  says,  that  on  the day  of , 

a.  d.,  18 —  he  served  the  within  notice  upon  the  said  A.  B.,  by 
giving  him  personally  a  true  copy  thereof. 

(Signed)  M.  N. 

Sworn  to  and  subscribed  before  me,  this day  of , 

a.  d.  18—.  A.  C, 

[seal.]  Probate  Judge,  etc. 

21.  Adjournments.  Upon  the  day  set  for  the  hearing,  the 
court  may,  undoubtedly,  upon  good  cause  shown,  adjourn  the 
hearing,  at  the  instance  of  either  party,  to  any  other  day;  but 
no  adjournment  should  be  had  without  good  cause,  nor  should  it 
then  be  so  long  as  to  occasion  unreasonable  delay  upon  either 
side.  But  the  whole  matter  of  adjournments  is  within  the  sound 
discretion  of  the  court. 

22.  If  an  adjournment  is  at  any  time  had,  the  same  ought  to 
be  noted  on  the  the  journal  of  the  court,  and  may  thus : 

23.  Form  of  Journal  Entry  of  Adjournment. 

In  the  matter  of  the  exceptions  of  M.  N.  to  the  bond  of  A.  B.,  as 

guardian  of  C.  D.     This  matter  is  continued  until  the day 

of ,  a.  d. .  at o'clock  —  M. 

24.  Final  hearing.  Upon  the  final  hearing  of  the  exceptions 
to  the  bond,  the  court  will  hear  the  parties  testify,  and  such 
other  witnesses,  including  the  sureties,  if  they  are  offered,  as 
either  party  may  produce;  and  arguments  of  counsel  may  also 
be  heard. 

25.  Court  may  require  additional  sureties,  etc.  Upon  such  hear- 
ing, the  court  may  either  dismiss  the  exceptions,  or  require  the 


172  EXCEPTIONS   TO    BOND,  ETC.        [CHAP.  10,  26-29 

guardian   to  find    additional    sureties,  or   security  in  a   larger 
amount,  or  make  such  other  order  as  the  ease  may  require.1 

2G-28.  Form  of  journal  entry.  If  the  exceptions  are  dismissed, 
the  following  entry  should  be  made: 

In  the  matter  of  the  exception  of  M.  N.  to  the  bond  of  A.  B.,  as 
guardian  of  C.  D. 

This  day  this  matter  ca'me  on  to  be  heard,  upon  the  allega- 
tions of  the  parties  and  the  testimony  offered,  and  the  court, 
being  fully  advised  in  the  premises,  find  the  exceptions  are  not 
well  taken  ;  and  it  is  therefore  ordered  by  the  court  that  the 
same  be  dismissed,  and  that  the  said  M.  N.  pay  the  costs  herein, 

taxed  at  dollars,  within  days,  and  in  default  thereof 

that  an  execution  issue  therefor,  as  upon  judgments  at  law. 

29.  If  exceptions  sustained,  what  ?  If  the  court,  however,  sus- 
tain the  exceptions,  in  any  or  all  particulars,  then  an  order  must 

1£62til-  The  proper  court  has  the  power  to  require  the  guardian  to 
give  an  additional  bond  for  the  discharge  of  the  general  duties  of  the  of- 
fice. Suit  may  be  brought  upon  the  additional  bond  before  the  original 
bond  given  by  the  guardian  is  exhausted,  or  the  sureties  thereon  shown  to 
be  worthless.  Where  it  does  not  clearly  appear  to  have  been  the  intention 
that  such  additional  bond  was  to  be  subsidiary  to,  and  security  for,  the  orig- 
nal  bond,  the  obligors  in  the  additional  bond  are  liable  for  breaches  of  it, 
either  in  a  separate  suit  against  them  and  the  obligors  in  the  original  bond 
upon  both  bonds.  In  such  case  the  additional  bond  is  a  primary  concurrent 
security.     Allen  v.  State;  61  Ind.  261;  same,  3  Cin.  Law  Bui.  747. 

The  late  court  of  common  pleas,  acting  as  a  probate  court,  had  authority 
to  require  a  guardian  to  give  a  second  bond,  in  case  the  first  had  become  in- 
sufficient.    (Hocking  District  Court,  1852.)     Case  v.  State,  10  W.  L.  J.  163. 

The  sureties  on  a  second  bond  required  a  guardian,  on  the  first  having  be- 
come insufficient,  providing  for  a  faithful  discharge  of  his  duties,  are  liable 
for  failure  to  pay  over  all  money  of  his  ward,  whether  received  prior  or  sub- 
sequent to  the  bond.     lb. 

In  a  suit  by  a  guardian  against  the  sureties  of  a  former  guardian,  under 
section  7  of  the  act  of  April  17,  1857  (S.  &  C.  621),  the  defendants  are  not 
precluded  by  the  proviso  contained  in  said  section  from  denying  the  fact  of 
the  plaintiff's  guardianship,  though  after  judgment  against  their  principal. 
1866.     Shroyer  v.  Richmond,  16  0.  S.  455. 

The  liability  of  a  surety  on  a  new  bond  is  prospective  only.  Lowry  v. 
State,  64  Ind,  421. 


CHAP.  10,  30-35.]   EXCEPTIONS  TO  BOND,  ETC.  173 

"be  made  accordingly;  and,  in  such  case,  the  entry  may  be  in  the 
following  form : 

30-32.  Form  of  Journal  Entry,  sustaining  Exceptions,  Revoking  Let- 
ters and  Assessing  Costs. 
In  the  matter  of  the  exceptions  of  M.  N.  to  the  bond  of  A.  B.,  as 

guardian  of  C.  D. 

This  day,  this  matter  came  on  to  be  heard,  upon  the  allegations 
of  the  parties,  and  the  testimony  offered ;  and  the  court,  being  fully 
advised  in  the  premises,  find  that  the  sureties  upon  said  bond  are 
insufficient  [or,  if  the  case  be  so,  say,  the  amount  of  said  bond  is  in- 
sufficient by  the  sum  of dollars] — [or  if  both  of  these  facts  are 

found  by  the  court,  then  state  them  both  as  found]  ;  it  is  therefore  or- 
dered by  the  court  that  the  said  A.  B.,  within days  [a  reason- 
able time  to  be  fixed  by  the  court],  give  bond  as  guardian,  as  aforesaid, 
in  the  same  amount  as  the  former  bond,  with  additional  sureties,  to 
the  satisfaction  of  the  court  [or  if  the  finding  require  it,  say,  give  an 
additional  bond,  as  guardian,  as  aforesaid,  in  the  sum  of dol- 
lars]; and  it  is  further  ordered  by  the  courts  that  in  case  the  said 
A.  B.  shall  fail  to  comply  with  the  foregoing  order  within  the  time 
limited  in  that  behalf,  then  he  shall  be  removed  from  his  office  as 
guardian  of  the  said  C.  D.,  and  his  powers  and  authority  as  such 
guardian  shall  thenceforward  cease  and  determine. 

And,  it  is  further  ordered,  that  the  said  A.  B.,  out  of  his  own 
private  estate  [or,  out  of  the  estate  of  said  C.  D.],  pay  the  costs 

herein  within  days,  and  in  default  thereof,  that  execution  issue 

therefor,  as  upon  judgments  at  law. 

33.  Costs,  who  to  pay;  court  decides. — The  question  as  to  who  shall 
pay  costs,  is  one  for  the  court  to  determine,  upon  the  whole  cir- 
cumstances of  the  case,  exercising  a  sound  discretion  therein. 

34.  Court  must  act  of  its  oivn  motion . — But  even  if  no  exceptions 
are  filed  by  any  one,  the  statute  nevertheless  makes  it  the  duty  of 
the  court,  by  whom  any  guardian  is  appointed,  to  require,  of  its 
own  motion,  such  guardian  to  give  an  additional  bond,  whenever, 
in  the  opinion  of  the  court,  the  interests  of  the  ward  of  such  guar- 
dian demand  the  same.1 

35.  Guardian's  right  to  notice,  etc.,  in  such  case  also. — A  notifica- 

1 1  6261. 


174  EXCEPTIONS  TO  BOND,  ETC.  [CHAP.   10,  06. 

tion  similar  to  that  in  paragraphs  10-14,  so  modified  as  to  show 
that  it  is  a  movement  of  the  court  itself,  should  be  served  upon  the 
guardian  ;  and  proceedings  and  orders  similar  to  those  made  where 
exceptions  are  tiled,  should  be  had  when  the  court  acts  upon  its 
own  motion. 

THE    RELEASE    OF   SURETIES.1 

36.  How  surety  of  guardian  released. — Any  surety  of  a  guar- 
dian may,  at  any  time,  apply  to  the  proper  probate  court  to  be 
released  from  his  bond  of  such  guardian,  by  filing  his  request 
therefor  with   the  judge  of  such   court,   and  giving  ten  day's  no- 

1  See  notes  on  pp.  36,  164-7,  172,  177-181. 

The  judgments  and  orders  of  the  probate  court,  including  the  approval 
of  partial  and  final  accounts  of  guardians,  import  absolute  verity  as  between 
the  parties  thereto,  and  they  can  not  be  contradicted  or  questioned  collater- 
ally; but  where  a  surety  in  the  bond  of  a  guardian  is  discharged  before  any 
account  is  filed,  and  a  new  bond,  with  other  surety,  is  accepted  in  lieu  of  the 
first  bond,  and,  before  such  substitution,  the  guardian  of  the  ward  embezzled 
money  of  the  ward  received  after  the  first  bond  was  given,  the  fact  that, 
subsequently  to  such  substitution,  the  guardian  files  his  first  account,  which 
is  approved  by  the  probate  court,  failing  to  show  the  receipt  of  the  money 
so  embezzled,  will  not  bar  an  action  by  the  person  who  was  ward,  on  arriv- 
ing at  Cull  age,  against  the  surety  in  the  first  bond,  if  the  guardian,  in  a  sub- 
sequent account,  charges  himself  with  the  money  so  embezzled;  and  parol 
evidence  is  admissible  to  show  when  it  was  received,  and  also  when  it  was 
embezzled.      Eichelberger  v.  Gross,  42  O.  S.  49. 

On  December  28,  1872,  N.  was  appointed  guardian  of  an  imbecile;  he 
gave  bind  with  B.  and  T.  as  sureties,  and  entered  upon  his  trust.  At  sun- 
dry times  thereafter,  by  order  of  court,  he  sold  real  estate  of  his  ward, 
and  at  each  sale  gave  the  special  bond  required  by  law.  He  received  in  cash 
the  proceeds  of  the  land  sales,  and  he  also  received  a  small  amount  for  the 
rents  of  real  estate.  After  the  proceeds  and  amounts  were  so  received,  B. 
was  released  as  surety,  and  N.  gave  a  new  bond,  with  T.  and  T.  as  sureties, 
and  he  continued  in  his  trust.  N.  resigned,  and  settled  his  accounts  with 
the  court,  which  found  a  large  amount  due  from  him  t  >  his  ward,  and  or- 
dered the  same  paid  to  his  successor.  Thereupon  N.  paid  the  greater  part 
of  the  amount  due,  but  he  made  default  as  to  the  residue,  and  his  successor 
brought  suit  on  the  last  general  bond,  against  N.  as  principal,  and  T.  and  T, 
as  sureties.  Held,  the  sureties  on  such  bond  are  liable  for  the  unpaid  residue 
whether  or  not  the  same  i*  partly  or  entirely  the  proceeds  of  the  sale  of  such 
real  estate.     Tuttle  v.  Northrop," 44  O.  S.  178. 

In  the  settlement  of  a  guardian's  account,  he  was  credited  with  the  pay- 
ment of  moneys  for  his  ward,  which  in  fact  had  not  been  paid,  and  the  ac- 
count was  subsequently  corrected  during  the  minority  of  the  ward.  Held, 
that  in  such  case  the  liability  of  the  surety  in  the  guardian's  bond  is  not  af- 
fected.    Scobey  v.  Gano,  35  O.  S.  550. 

Release  by  court  of  one  of  two  sureties  on  a  joint  and  several  guardian's 
bond,  and  accepting  another  surety  in  his  place,  releases  the  co-surety  not 
having  consented  thereto.  But  such  bond  is  good  against  the  new  surety. 
Dovvell  v.  Guion,  2  Bull.  135;  7  Bee.  273. 


CHAP.   10,  39-49.]       EXCEPTIONS  TO  BONDS,  ETC.  175 

tice  to  such  guardian  when  application  will  be  made  to  such 
court  to  release  such  surety.1 

37-39.  Form  of  the  Request  to  be  Released  by  Surety. 

To  the  Probate  Court, county,  Ohio: 

The  undersigned,  a  surety  on  the  bond  of  A.  B.,  as  guardian 
of  C.  D.,  requests  to  be  released  from  said  bond. 

P.  Q. 
40-45.  Form  of  Notice  to  the  Guardian. 

To  A.  B.,  guardian  of  C.  D.: 

Sir  :  On  the day  of ,  a.  d.  18—,  I  filed  with  the  pro- 
bate judge  of county,  Ohio,  a  request  to  be  released  from 

the  bond  on  which  I  am  surety  for  you,  as  guardian  of  C.  D. . 

The  matter  will  be  beard,  by  said  probate  judge,  on  the 

day  of ,  a.  d,  18 — ,  at o'clock,  —  m.  [this  day  must  be 

ten  days  from  the  day  the  notice  is  served'],  at  which  time  you  must 
give  a  new  bond,  with  sureties  to  be  approved  by  the  court, 
otherwise  you  will  be  removed  from  such  guardianship. 

Dated day  of a.  d.  18 — . 

[Signed]  P.  Q. 

46.  The  service  of  such  notice  may  be  by  leaving  a  copy  thereof 
with  the  guardian  at  the  time  above  directed.  Such  service  may 
be  made,  unless  otherwise  ordered  by  the  judge,  by  some  disin- 
terested person,  who  should  afterwards  appear  before  the  pro- 
bate judge,  or  some  other  officer  authorized  to  administer  oaths, 
and  make  affidavit  on  the  back  of  the  notice  as  to  its  service. 
The  notice  itself  should  then  be  filed  in  the  probate  court  as  evi- 
dence of  service. 

47-49.- — The  form  of  the  affidavit  of  service  may  be  as  follows  : 
State  of  Ohio, county,  ss. 

M.  .N.   oeing  duly  sworn,  says,  that  on  the s  day  of ,  a. 

d.  18 — ,  he  served  the  within  notice  upon  A.  B.  personally,  by 
lea  vim!;  with  him  a  true  copy  thereof. 

[Signed],  M.   N. 

!§  6273.     See  notes  on  pp.  179,  180  ;  42  0.  S.  549. 

If  proper  notice  is  not  sprved,  as  required  by  law,  a  surety's  discharge 
would  be  void.     Dupont  v.  Mayo,  56  (la.  .104. 

12 


176  EXCEPTIONS  TO  BONDS,  ETC.   [CHAP.  10,50-57. 

Sworn  to  and  subscribed  before  me,  this day  of a.  d- 

18 — .  A.  C,  Probate  Judge,  etc. 

50.  Journal  entries. — There  should  be  an  entry  of  these  pro- 
ceedings upon  the  journal  of  the  court,  as  each  step  is  taken. 

51-52.  Form  of  Entry  Noting  the  Filing  of  the  Bequest. 

In  the  matter  of  the  guardianship  of  C.  D. 

This  day  came  P.  Q.,  a  surety  on  the  bond  of  A.  B.,  as  guar- 
dian of  C.  D.,  and  filed  his  written  request  to  be  released  as 
such  surety. 

53-54.  Form  of  Entry  Requiring  New  Bond. 

In  the  matter  of  the  guaixlianship  of  C.  D. 

This  day  came  P.  Q.,  a  surety  on  the  bond  of  A.  B.,  as  guar- 
dian of  C.  D.,  and  produced  here  to  the  court  the  notice  to  A.  B., 
of  his  application  to  be  released  as  such  surety,  and  it  being 
proved  to  the  satisfaction  of  the  court,  that  said  notice  was  duly 
given  to  said  A.  B.,  by  copy  served  upon  him  personally  by  M. 
N.,  on  the day  of ,  a.  d. .  [a  day  ten  or  more  days  be- 
fore the  day  of  hearing,]  it  is  therefore  ordered  that  said  A.  B. 

shall  give  a  new  bond  in  the  sum  of dollars,  as  guardian  as 

aforesaid,  conditioned  according  to  law,  with  surety  to  the  ac- 
ceptance of  the  court,  within days. 

55.  Entries  when  new  bond  given. — If  the  new  bond  be  given 
within  the  time  limited  therefor  in  the  last  order,  then  an  entry 
should  be  made  of  its  approval  or  rejection,  as  tbe  case  may  be. 

56-57.  Form  of  Entry  where  the  Bond  is  Approved. 

In  the  matter  of  the  guardianship  of  C.  D. 

This  day  came  A.  B.,  guardian  of  C.  D.,  and  gave  a  new  bond 
as  such  guardian, in  the  sum  of dollars,  conditioned  accord- 
ing to  law,  with and ,  as  his  sureties  thereto, 

in  accordance  with  the  former  order  of  this  court,  which  last 
named  bond  and  sureties  are  approved  by  the  court.  And  it  is 
thereupon  ordered  that  said  P.  Q.,  a  surety  upon  the  former  bond 
of  said  A.  B.,  as  such  guardian,  be  and  he  is  henceforth  released 
upon  said  former  bond,  for  and  on  account  of  the  acts  of  said  A. 
B.,  as  guardian  as  aforesaid,  from  this  time  forth. 


CHAP.  10,  58-63.]   EXCEPTIONS  TO  BONDS,  ETC.  177 

58.  Guardian  removed  if  bond  not  given. — If  the  guardian  fails  to 
give  bond  when  directed  by  the  court  to  do  so,  he  must  be  removed 
and  his  letters  must  be  superseded.1 

59-60.   Form  of  Journal  Entry  where  Bond  is  not  approved  or  given. 

In  the  matter  of  the  guardianship  of  C.   D. 

This  day  being  the  day  fixed  by  the  court,  by  the  former  order 
herein,  when  the  said  A.  B.   should  give  a  new  bond  as  guardian 

of  C.  D.,  in  the  sum  of dollars,  conditioned  according  to  law, 

and  with  sureties  to  the  acceptance  of  the  court,  the  said  A.  B. 
failed  to  give  such  bond. 

It  is  therefore  ordered  by  the  court,  that  the  said  A.  B.  be,  and 
he  is  hereby  removed  from  the  said  guardianship  of  the  said  C.  D., 
and  that  his  letter  of  guardianship  be,  and  is  hereby  superseded, 
and  his  powers  as  such  guardian  henceforward  revoked. 

61.  Order  releasing  sureties  not  needed,  if  guardian  removed,  be- 
cause the  guardian's  removal  of  itself  releases  the  sureties  as  to  the 
guardian's  future  art.--. 

62.  New  guardian  should  be  at  once  appointed,  in  case  of  removal 
of  the  guardian,  so  that  the  ward's  estate,  as  well  as  the  ward,  may 
he  properly  taken  care  of. 

63.  Extent  of  old  surety's  liability. — The  original  surety  will  not  be 
released  until  such  guardian  so  gives  bend  :  but  such  original 
surety  will  be  liable  only  for  the  acts  of  such  guardian  from  the 
time  of  the  execution  of  the  original  bond  to  the  filing  and  approval 
by  the  court  of  such  new  bond.2 

>§G273. 

2?6273.     State  v.  Paee.  73  Ind.  209.     See  notes  pp.  36,  174,  180. 

The  sureties  on  an  administration  bond,  given  by  an  executor  who  has 
been  removed  are  liable  thereon  to  the  administrator  appointed  in  his  place 
for  the  indebtedness  of  such  executor  to  the  estate  for  assets  received  by  him 
and  converted  to  his  own  use;  and  a  recovery  may  be  had  therefor  by  the 
successor  in  a  suit  on  the  administration  bond.  Foote  v.  Wise,  46  O.  S.  20; 
Slagel  v.  Entrekin,  44  O.  S.  637,  approved  and  followed.  See  same  case  fur- 
ther.    The  same  principles  govern  a  guardian's  bond. 

The  estate  of  a  deceased  surety  on  a  guardian's  bond  is  liable  for  a  default 
which  occurs  after  the  surety's  death.  Cotton  v.  State,  64  Ind.  573;  47  Ind. 
316;  59  Ind.  485. 

A  guardian  t'ivinc  another  bond  upon  order  of  court  for  other  and  better 
security,  does  not  release  the  sureties  upon  the  original  bond,  nor  render  those 
upon  the  new  bond  primarily  liable.     McGlothlin  v.  Wyatt,  1  Lea  (Tenn.) 


178  EXCEPTIONS   TO    BOND,  ETC.        [CHAP.   10,  64-65. 

64.  As  to  joint  bonds.  If  two  or  more  trustees  or  guardians 
have  given  a  joint  bond,  it  is  in  the  nature  of  an  agreement  to  be 
answerable  for  each  other's  acts  and  defaults.  The  remedy  for 
a  breach  of  trust  in  such  cases  is  a  suit  upon  the  bond,  in  the 
name  of  the  proper  person,  for  the  benefit  of  those  interested, 
against  all  the  joint  makers  and  sureties  of  the  bond  ;  and  any 
breaches  of  trust,  committed  by  either  or  all  the  guardians,  may 
be  given  in  evidence,  and  a  judgment  against  all  will  "be  ren- 
dered, although  the  breach  of  trust  was  committed  by  one  alone. 
But  the  estate  of  a  guardian  who  had  died  before  the  wrongful 
act  of  a  co-guardian,  would  not  be  liable  for  such  act.1 

SUITS    ON    THE   BOND. 

65.  Mow  suit  on  bond  brought,  and  by  whom.  When  a  guard- 
ian, by  any  misconduct,  neglect  of  duty,  etc.,  forfeits  his  bond, 
or  renders  his  sureties  liable,  any  person  injured  thereby,  or 
who  is  by  law  entitled  to  the  benefit  of  the  security,  may  bring 
an  action  thereon,  in  his  own  name,  against  the  person  and  bis 
sureties,  to  recover  the  amount  to  which  he  is  entitled  by  reason 
of  the  delinquency.  Such  action  may  be  prosecuted  on  a  certi- 
fied copy  of  the  bond,  and  the  custodian  of  the  bond  must  de- 
liver such  copy  to  any  person  claiming  to  be  so  injured,  on  tender 
of  the  proper  fee.2  (For  other  remedies,  see  par.  19,  p.  53 ;  par. 
<S1,  p.  182.)  

1  Perry  on  Trusts,  g  426. 

2H994-     See  notes,  pp.  32,  36,  172,  174,  177,  180,  182,  230. 
Guardian's  cheek  mailed  to  ward  for  balance  due,  before  ward  came  of 
age,  which  reached  ward  after  he  came  of  age,  can  not  be  used  for  what. 
"W.  v.  K.,  8  Rec.  100. 

Abandoning  the  custody  of  estate  into  others'  hands,  under  mistaken  im- 
pression of  what  the  law  is,  does  not  release  sureties.  Cotton  v.  Wolf,  14 
Bush.  (Ky.)  238. 

The  bond  of  a  guardian  whose  appointment  is  void,  is  good  as  a  common 
law  obligation,  and  the  sureties  are  liable  for  all  property  coming  into  such 
guardian's  hands,  by  reason  of  such  appointment.  lb.  See  also  Corbitt  v. 
Carroll,  50  Ala.  315. 

A  guardian  is  liable  in  his  bond  for  using  his  ward's  money  in  his  own 
business,  as  well  as  for  disposing  of  any  of  ward's  propery  for  his  own  use. 
Lowry  v.  State,  64  Ind.  421. 

An  action  of  assumpsit  will  not  lie  at  the  suit  of  an  administrator,  ap- 
pointed under  the  laws  of  this  state,  to  recover  moneys,  :be  proceeds  of  the 
lands  of  the  plaintiff's  intestate  lying  in  Pennsylvania,  which  descended  to 
the  wards  of  the  defendant,  and  were  sold  by  him,  as  guardian,  under 
authority  of  the  orphan's  court  of  that  state.     To  that  court,  and  within  the 


CHAP.  10,  66-70.]    EXCEPTIONS  TO  BOND,  ETC.  179 

66.  Effect  of  judgment.  A  judgment  for  one  delinquency  does 
not  preclude  the  same  or  another  party  from  an  action  on  the 
same  instrument  for  another  delinquency.1 

07.  Extent  of  remedy  by  suit  on  bond.  The  remedy  provided 
in  the  two  preceding  paragraphs  is  not  confined  in  its  application 
to  the  specific  duties  laid  down  in  the  statutes,  and  set  forth  in 
the  different  chapters  of  this  book,  and  especially  in  the  5th,  but 
extends  to  all  duties  of  the  guardian  as  such,  and  applies  to  neg- 
ative as  well  as  positive  acts,  in  this  respect ;  as,  if  an  injury 
occurs  to  the  estate  of  the  ward,  by  the  fraud  or  neglect  of  the 
guardian,  he  will  be  liable,  as  much  as  if  an  injury  was  occasioned 
by  his  direct  act.2 

68.  He  would  no  doubt  be  liable  if  an  unjust  judgment  were 
rendered  against  his  ward,  by  reason  of  his  failing  to  defend  the 
action,  knowing  of  its  pendency. 

69.  So,  too,  he  would,  no  doubt,  be  liable  for  waste  occurring 
through  his  negligence  on  the  real  estate  of  the  ward. 

70.  Separate  liability  of  guardian. — It  is  not  the  bond  he  gives  that 
raises  any  liability  upon  the  guardian's  part.  While  he  is  liable  for 
any  breach  of  the  condition  of  the  bond,  he  is,  nevertheless,  per* 
sonally  liable  for  the  same  matters,  acts,  or  omissions  of  duty,  if  no 
bond  be  given,  or  if  the  bond,  being  given,  should  prove  defective 
or  inefficient. 

jurisdiction  of  that  state,  the  defendant  and  his  sureties  are  responsible  for 
the  faithful  administration  of  his  trust.     1846.    Donley  v.  Shields,  14  O.  359. 

Where  a  guardian's  bond  recites  the  appointment  of  a  guardian  by  the 
proper  authority,  the  obligors  are  estopped  to  deny  the  fact  thus  recited,  or  to 
question  the  validity  of  the  appointment.     1866.    Shroyer  v.  II.,  16  U.  S.  455. 

A  suit  against  the  sureties  in  a  guardian's  bond  may  be  sustained  without 
a  previous  adjustment  of  the  amount  due  from  the  principal.  1835.  State  v. 
Humphreys,  7  0.  1  pt.  223.  This  case  explained  in  Newton  v.  Hammond 
38  O.  S.  430. 

A  right  of  action  on  such  bond  to  recover  from  the  sureties  the  amount 
remaining  in  the  hands  of  the  guardian  first  accrues  to  the  ward,  when  such 
amount  is  ascertained  by  the  probate  court  on  the  settlement  of  the  guard- 
ian's final  account.     Newton  v.  Hammond,  38  O.  S.  430. 

Mere  delay  of  a  ward,  after  coming  of  age,  to  compel  his  guardian  to  settle 
his  accounts  in  the  probate  court,  does  not  discharge  the  sureties,  notwith- 
81  muling  the  guardian  may,  in  the  meantime,  have  become  insolvent.     lb. 

1  \  4994. 

2  Litt.  123.  If  a  loss  occurs  from  any  want  of  care,  attention,  or  diligence  on 
the  part  of  the  trustee,  he  maybe  held  responsible  for  not  taking: such  action  as 
was  called  for.  Perry  on  Trusts,  #256;  Cotton  v.  State,  64]  nd.  573;  England 
v.  Down^s,  6  Beav.  269,  279;  Town  ley  t\  Bond,  2  Conn.  &  Laws,  405;  James  v. 
Frearson,  1 Y.  &  C.  Ch.  Ca.  270 ;  Taylors.  Millington,  4  Jur.  (N.S.)204;  F..\p. 
Greaves,  25  L.  J.  53;  2  Jar.  (N.  S.)  253;   Malzy  v.  Edge,  2  Jur.  (N.  S.)  8. 


180  EXCEPTIONS  XU  BOMJ,  ETC.       [CHAP.   10,  71-74. 

71.  Liability  of  the  sureties  on  the  bond. — On  the  other  hand,  the 
sureties  of  a  guardian  have  no  liabilities  except  those  arising  from 
the  bond.     If  the  bond  be  void,  the  sureties  are  not  liable  at  all. 

72.  But  it  the  bond  be  sufficient  to  commence  a  liability  on  the 
part  of  the  sureties,  then  any  failure  to  perform  any  of  the  duties 
of  the  guardian,  will  be  a  breach  ol  the  condition  of  the  bond,  and 
the  sureties  will  be  liable  accordingly.1 

7,3.  When  suit  on  guardian's  bund  must  be  brought. — Generally,  an 
action  on  a  guardian's  bond  must  be  brought  within  ten  years  after 
the  cause  of  action  accrues.2 

74.  If  a  person  entitled  to  bring  such  action  is,  at  the  time  the 
cause  of  action  accrues,  within  the  age  of  minority,  of  unsound 
mind,  or  imprisoned,  such  person  may  bring  such  action  within 
ten  years  after  such  disability  is  removed/' 

1In  an  action  on  a  guardian's  bond  for  the  recovery  of  the  amount  found 
due  the  wards  upon  a  final  settlement  of  the  guardian's  accounts  in  the  pro- 
bata court,  the  sureties  are  concluded  by  the  settlement,  and  will  not  be 
heard,  in  the  absence  of  fraud  and  collusion,  to  question  its  correctness  or  to 
demand  a  rehearing  of  the  accounts.      Braiden  v.  Mercer,  44  O.  S.  339. 

A  guardian  of  the  person  and  property  of  a  minor  having  received,  after 
giving  bond,  money  belonging  to  his  ward,  and  embezzled  it,  the  subsequent 
discharge  of  the  surety  in  such  bond,  and  the  acceptance,  by  the  probate 
court,  of  a  bond  with  other  surety,  in  lieu  of  the  first  bond,  will  not  exoner- 
ate such  surety  in  the  first  bond  with  respect  to  the  money  so  embezzled, 
but  he  will  be  liable  upon  the  ground  that  the  guardian  failed  to  faithfully 
perform  his  duties.  Eichelberger  v.  Gross,  42  O.  S.  549.  See  also  note  2 
below,  and  notes  on  pp.  32,  36,  151,  174,  177-9,  230. 

2 1  4984.  Under  the  act  of  1831  (3  Chase,  1768),  suit  on  bond  limited,  as 
in  an  action  against  principal  alone.  State  v.  Conway,  18  O.  234;  State  v. 
Blake,  2  O.  S.  147;  State  v.  Newman,  2  O.  S.  567.  But  under  this  section 
the  limitation  was  held  to  be  ten  years,  even  where  the  bond  was  given  be- 
fore the  adoption  of  the  code.  King  v.  Nichols,  16  O.  S.  80;  State  v.  Orr, 
16  O.  S.  522. 

But  where  the  action  is  not  on  the  official  bond,  but  against  the  officer 
alone,  it  is  barred  in  six  years.     Mount  v.  Lakeman,  21  O.  S.  643. 

Action  atrnin-t  officer  does  not  accrue  until  demand  is  made.  Keithler  v. 
Foster,  22  O.  S.  27. 

3  §4986,  as  am.  83  O.  L.  74. 

But  such  disability  will  not  extend  to  rights  of  action  of  a  married  woman 
as  to  her  separate  property  or  business  transacted  in  her  own  name.     lb. 

Party   relying    on    the    statute    can    not    avail    himself    of   successive 


CHAP.   10,  75-70.]       EXCEPTIONS  TO  BOND,  ETC.  181 

75.  For  other  modifications  of  paragraph  7.3  above,  see  the 
chapter  cf  Revised  Statutes,  including  sections  4974-4992. 1 

76.  Sureties  may  be  made  parties  to  judgment.  Sureties  to  the 
bond  of  a  guardian  or  trustee,  may  be  made  parties' to  a  judg- 
ment thereon  against  the  principal,  by  action.2 

77.  Where  guardian  may  be  sued.  Generally  speaking,  actions 
must  be  brought  where  the  subject  of  the  action  is  situated  ;  or 
in  the  county  where  the  cause  of  action,  or  some  part  of  it,  arose; 
or  in  the  county  where  the  defendant  resides,  or  may  be  sum- 
moned ■'■'■  but  actions  against  a  guardian  may  be  brought  in  the 
county  wherein  he  was  appointed  or  resides,  and  summons  may 
issue  to  any  county,  in  such  cases.4 

78.  When  non-resident  guardian  may  be  served  by  publication. 
In  actions  against,  guardians,  when  the  defendant  has  given  bond 
as  such  in  this  State,  but  at  the  time  of  the  commencement  of 
the  action  is  a  non-resident  of  the  State,  or  his  place  of  residence 
can  not  be  ascertained,  service  may  be  had  by  publication.5 

79.  Guardian  may  sue  in  his  own  name.  The  general  rule  of 
our  law  is,  that  all  suits  must  be  brought  in  the  name  of  the  real 

disabilities.  "Whitney  v.  Webb,  10  0.  513;  Carey  v.  Robinson,  13  0.  181; 
Cozzens  v.  Farnan,  30  O.  S.  491. 

The  statute  is  personal  and  can  not  be  extended  to  a  party  not  within  its 
saving.     Bronson  v.  Adams,  10  O.  135. 

Where  the  interests  of  two  defendants  are  joint  and  inseparable,  and  the 
rights  of  one  are  saved,  it  inures  to  the  benefit  of  the  other.  Sturges  v.  Long- 
worth,  1  O.  S.  544;  Bradford  v.  Andrews,  20  O.  S.  208;  Meese  v.  Keefe,  10 
O.  362;  Riddle  v.  Roll,  24  O.  S.  572;  Trimble  v.  Longworth,  13  O.  S.  431. 

The  grantee  or  heir  of  one  protected  from  the  operation  of  the  statutory 
bar  is  entitled  to  the  benefit  of  that  protection.  Ford  v.  Langel,  4  O.  S.  464 ; 
Carey  v.. Robinson,  13  0.  181. 

Under  the  act  of  1831  (3  Chase,  1768),  in  connection  with  the  act  of  1834 
(32  v.  10),  it  was  held  that  the  disability  of  infancy  in  a  female  was  removed 
at  the  age  of  eighteen  years.     Slater  v.  Cave,  3  0.  S.  80. 

The  four  years  limitation  prescribed  in  the  act  for  the  settlement  of  estates, 
within  which  suits  are  to  be  commenced  against  executors  and  adminis- 
trators, applies  to  an  action  instituted  on  a  guardian's  bond,  and  the  disa- 
bility of  infancy  will  not  save  the  plaintiff  from  the  operation  of  the  statute. 
1867.     Favorite  v.  Booher's  Adm'r.     17  0.  S.  548. 

1  ?  4984.  2  ?  5371.  3  \\  5022-5032. 

*  \  5051.     "  May  be  summoned,  interpreted."  46  O.  S.  "8. 
5  §5048,  as  cor.  77  O.  L.  44. 


182  EXCEPTIONS  TO  BONDS,  ETC.   [CHAP.  10,  80-88. 

party  in  interest ;  but  a  guardian  ma}-  bring  an  action  without 
joining  with  him' the  person  for  whose  benefit  it  is  prosecuted.1 
All  pleadings  in  such  cases  must  clearly  show  that  he  is  acting 
as  such  guardian,  and  not  for  himself  individually. 

80.  How  guardian's  bankruptcy  affects  his  liability.  The  guard- 
ian's liability  to  his  wards  is  not  affected  by  such  guardian's  dis- 
charge in  bankruptcy.2 

81.  Special  proceedings  to  compel  guardian  to  pay  money  found 
due  on  settlement.  If,  after  thirty  days  from  the  time  the  guard- 
ian's accounts  are  settled,  and  an  amount  is  found  to  be  due  to 
any  person,  or  a  balance  in  his  hands,  which  the  court  orders 
him  to  pay  over  to  any  person,  he  neglects  or  refuses  so  to  pay, 
the  person  so  interested  may  file,  in  the  probate  court  of  the 
county  where  such  settlement  or  order  was  made,  a  petition, 
briefly  setting  forth  the  amount  and  nature  of  the  claim  ;  where- 
upon a  citation  must  issue  from  said  court,  against  such  guard- 
ian, setting  forth  the  filing  of  the  petition,  and  the  amount 
claimed  by  the  petitioner,  and  commanding  the  guardian  to  ap- 
pear before  said  court  on  the  return  day  thereof,  to  answer  said 
petition  and  show  cause,  if  any  there  be,  why  judgment  should 
not  be  rendered  and  execution  awarded  against  such  guardian, 
for  the  amount  claimed  by  such  petitioner,  and  found  to  be  due 
upon  such  settlement  or  order.  This  citation  must  be  made  re- 
turnable not  less  than  twenty,  nor  more  than  forty  days  from  its 
date,  and  must  be  served  and  returned  by  the  sheriff  or  other 
proper  officer,  as  in  the  case  of  a  summons,  and  may  be  issued 
to  any  county  in  the  state.3 

82-88.  Form  of  Petition  by  Ward  in  Such  Case. 
State  of  Ohio,  county,  ss. 

Probate  Court.  7  Petition  to  compel  Guardian  to  pay  money 

C.  D.  v.  A.  B.  j       in  his  hands. 
The  petitioner,  C.  D.,  says  the  defendant,  A.  B.,  was  the  duly 

1  §g  4993-4995.  2  Re  Maybin,  15  Bank.  Reg.  468. 

3§  6195,  as  am.  78  O.  L.  76. 

A  suit  in  equity,  on  a  guardian's  bond,  to  compel  an  account,  can  not  be 
maintained  without  a  showing  that  the  powers  and  jurisdiction  of  the  pro- 
bate court  are  ineffectual  to  secure  such  accounting.  Gorman  v.  Taylor,  43 
O.  S.  86;   Newton  v.  Hammond,  38  O.  S.  430,  approved;   lb.  86. 

See  also  par.  19,  p.  53  ;   par.  81,  p.  182.      . 


CHAP.  10,  89-93.]        EXCEPTIONS  TO  BONDS,  ETC.  183 

appointed  and  qualified  guardian  of  petitioner,  and  as  such,  on 

the day  of ,  a.  d.  18 — ,  upon  his  final  settlement  with 

the  probate  eourt  of  this  county,  there  was,  by  said  court,  found 

in  his  hands  the  sura  of dollars,  balance  of  his  accounts, 

belonging  to  the  petitioner,  and  ordered  to  be  paid  over  accord- 
ingly, by  said  court,  and  which  amount  it  was  the  defendant's 
duty  to  have  paid  to  the  petitioner  within  thirty  days  after  the 
day  of  the  settlement  aforesaid,  whieh  time  has  elapsed,  but 
which  he  has  refused  and  neglected  to  do,  and  still  so  neglects 
and  refuses,  although  the  same  has  been  repeatedfy  demanded 
of  him. 

The  petitioner  therefore  asks  judgment  and  execution  against 
said  defendant  for  said  sum  of  money,  with  interest  thereon  from 
the day  of ,  a.  d.  18 — ,  and  his  costs. 

(Signed)  C.  D. 

The  Sta+.e  of  Ohio, county,  ss. 

C.  D.,  being  sworn,  says  that  he  is  the  plaintiff  above  men- 
tioned, and  that  the  allegations  contained  in  the  foregoing  peti- 
tion are  true,  as  he  verily  believes. 

C.  D. 

Sworn  to  and  subscribed  before  me,  this  day  of  , 

A.  d.  18—. 

ElCHARD    EOE, 

Notary  Public, county,  0. 

89-93.  Form  of  Petition  by  a  Creditor  of  the  Ward. 

State  of  Ohio, county,  ss. 

Probate  Court.  )  Petition  to  compel  Guardian  to  pay  money 

M.  N.  v.  A.  B.  J      in  his  hands. 

The  petitioner,  M.  N.,  says  that  the  defendant,  A.  B.,  is  the 

guardian  of  C.  D.,  a  minor,  and  as  such,  on  the  day  of 

,  A.  D.  18 — ,  in  a  settlement  of  his  accounts  then  had,  in  the 

Probate  Court  of  this  count}T,  the  said  court  found  that  the  said 

ward  was  indebted  to  the  petitioner  in  the  sum  of dollars, 

and  that  said  A.  B.  had  mone}'  in  his  hands  of  said  ward  suffi- 
cient to  pay  the  same,  and  thereupon  ordered  the  defendant  to 
pay  the  same;  and  which  amount  it  was  the  duty  of  the  defend- 


184  EXCEPTIONS  TO  BONDS,  ETC.      [ciIAP.  10,  94-100 

ant  to  have  paid  within  thirty  days  after  the  day  of  the  settle- 
ment aforesaid,  which  period  has  elapsed,  but  which  he  has 
refused  and  neglected  to  do,  and  still  so  neglects  and  refuses,  al- 
though the  same  has  been  repeatedly  demanded  of  him. 

The  petitioner  therefore  asks  judgment  and  execution  against 
said  defendant  for  said  sum  of  money,  with  interest  thereon 
from  the day  of ,  A.  D.  18—,  and  his  costs. 

{Signed)  M   N. 

The  State  of  Ohio, county,  ss. 

M.  N".,  being  duly  sworn  [and  conclude  as  in  the  preceding 
form]. 

94.  Form  of  petition  in  other  cases.— The  preceding  forms  can 
readily  be  adapted  to  meet  the  case  of  a  succeeding  guardian 
claiming  the  balance  in  the  former  guardian's  hands,  and  other 
cases  that  may  arise. 

95-99.  Form  of  the  Citation  upon  Petition  being  Filed. 

The  State  of  Ohio, county,  ss.     Probate  court. 

To  the  sheriff  of  said  county,  greeting: 

C.  D.    ) 

v.       [      Citation. 
A.  B.    ) 

You  are  hereby  commanded  to  make  known  to  said  A.  B.  that 
said  C.  D.  has  this  day  filed  in  said  court  a  petition  claiming  the 

gum  of dollars,  as  due  to  him  upon  defendant's  settlement 

with  the  probate  court  of  this  county,  as  guardian  of  C.  D.,  and 

command  him  to  appear  on  the day  of ,  a.  d.  18 — ,  and 

answer  said  petition,  and  show  cause,  if  any  he  has,  why  judg- 
ment should  not  be  rendered  and  execution  awarded  against  him 
for  the  amount  claimed,  and  interest.  You  will  make  due  service 
of  this  citation,  and  return  the  same  upon  the  day  last  above 
mentioned. 

Witness  my  hand  and  the   seal  of  said  court,  this day 

of ,  a.  d.  18—. 

(Signed)  A.  G.,  Probate  Judge. 

100.  How  to  proceed,  if  guardian  has  become  a  non-resident. — Sec- 
tion 5048  of  the  Revised  Statutes  provides,  that  constructive  serv- 


CHAP.  10,  101-103.]  EXCEPTIONS  TO  BOND,  ETC.  185 

ice  by  publication  may  be  made  (among  others),  "In  actions 
against  executors,  administrators,  or  guardians,  when  the  defendant 
has  given  bond  as  such  in  this  state,  but  at  the  time  of  the  com- 
mencement of  the  action  is  a  non-resident  of  the  state,  or  his  place 
of  residence  can  not  be  ascertained."  And  also,  "  In  actions  where 
the  defendant,  being  a  resident  of  this  state,  has  departed  from  the 
county  of  his  residence,  with  intent  to  delay  or  defraud  his  cred- 
itors, or  to  avoid  the  service  of  summons,  or  keeps  himself  concealed 
with  like  intent."1  No  doubt  that,  under  the  provisions  of  law 
given  in  paragraphs  30  or  37,  of  chapter  6,  a  guardian  who  had 
become  a  non-resident,  or  whose  residence  had  become  unknown, 
could  be  notified  by  publication,  as  directed  in  paragraphs  47-63 
of  the  same  chapter,  making,  of  course,  such  changes  in  the  forms 
there  given  as  the  facts  might  require. 

101-103.  Form  of  notice  by  publication,  in  suit  to  compel  distribu- 
tion, may  be  as  follows;  or  varied  to  suit  the  circumstances  and 
facts : 

LEGAL   NOTICE    (OR,  NOTICE). 

A.  B.,  a  resident  of  Cameron,  in  the  county  of  Clinton,  in  the 
State  of  Missouri  [or,  whose  residence  is  unknown],  will  take  no- 
tice that  C.  D.,  his  late  ward,  filed  in  the  probate  court  of  Wayne 

county,  in  the  State  of  Ohio,  a  petition  claiming  the  sum  of 

dollars,  and  interest,  as  due  to  him  upon  the  defendant's  settlement 

with  the  probate  court  of  said  county,  made  on   the day  of 

,  A.  D.  18 — ,  as  guardian  of  said  C.   D.,  and  also  for  costs, 

and  praying  for  a  judgment  and  execution  therefor  against  the  de- 
fendant. 

The  day  fixed  for  the  hearing  thereof  is  on  the day  of , 

A.  D.  18 — ,  at  which  time,  unless  said  A.  B.  answer  and  show  cause 
to  the  contrary,  a  judgment  and  order  will  be  asked,  as  prayed  for. 
(Signed,)  C.  D. 

1  ?  5048,  as  am.  87  O.  L.  225. 


186 


PARTITION 


[CHAP.  11,  1. 


CHAPTER  11. 


PARTITION. 


Par.  Par. 

1.  Law  governing  partition;  why       13. 
given  here. 

2.  Power   of  guardian    to   act  for 
ward  in  partition.  14. 

3.  Powers  of  foreign  guardian. 

4.  Who  may  be  compelled  to  parti-       15. 
tion. 

5.  Where  proceedings  for  partition       16. 
may  be  had. 

6.  Who  may  file  petition,  and  what       17. 
to  set  forth. 

7.  The  order  of  partition.  18. 

8.  The  writ  of  partition. 

9.  Duty  of  commissioners  in  mak-       19. 
ing  partition. 

10.  Their   duty  when    partition   of 
more  than  one  tract  demanded.       20. 

11.  Amicable  partition. 

12.  Commissioners  to  appraise  land 
when   they  can    not   divide   it;       21. 
election  of  party  to  take  at  ap- 
praisement. 22. 


Terms  of  payment  when  estate 
taken  by  party;  execution  of 
conveyances. 

Sale  of  the  estate  when  the  par- 
ties do  not  elect  to  take  the  same. 
How  such  sale  conducted,  and 
terms  thereof. 

Confirmation  of  sale,  and  execu- 
tion of  conveyances. 
Distribution  of  proceeds;  sher- 
iff's liability. 

Proceedings  when  estate  has 
been  once  offered  and  not  sold. 
When  successor  of  sheriff  who 
made  sale  to  execute  convey- 
ance. 

When  widow  is  entitled  to  dower, 
or  an  interest  is  subject  to  a  life 
estate. 

Commissioners  appointed  to 
partition  estate  to  assign  dower. 
Actions  by  one  parcener  against 
another,  etc. 


1.  Law  governing  partition ;  why  given  here. — As  very  many 
ward's  estates,  and,  consequently,  the  the  duties  of  their  guard- 
ians, are  affected  by  the  provisions  of  law  governing  partition,  it 
is  deemed  best,  fur  the  convenience  of  these  persons,  to  give  here 
fully  the  substance  of  these  provisions,  except  so  far  as  they  re- 
late to  the  partition  of  property  belonging  to  religious  societies. 
But  as  the  guardian,  in  such  matters,  would  probably  always  em- 
ploy an  attorney  conversant  with  the  practice  of  courts  of  com- 


CHAP.  11,  2-3.]  PARTITION.  187 

mon  pleas,  in  which  court  proceedings  for  partition  are  had,1  it  is 
not  deemed  necessary  to  encumber  this  chapter  with  the  forms 
with  which  such  attorneys  are  familiar  in  the  standard  books  of 
pleadings. 

2.  Power  of  guardian  to  act  for  ward  in  partition. — The  guard- 
ian of  a  minor,  idiot,  imbecile,  or  insane  person,  may,  on  behalf  of 
his  ward,  do  and  perform  any  act,  matter,  or  thing  respecting  the 
partition  of  an  estate  which  such  minor,  idiot,  imbecile,  or  insane 
person  could  do  under  this  chapter  if  he  were  of  age  and  of  sound 
mind ;  and  he  may  elect,  on  behalf  of  such  ward,  to  take  the  es- 
tate, when  the  same  can  not  be  divided  without  injury,  and  make 
payments  therefor  on  behalf  of  such  ward.2 

8.  Powers  of  foreign  guardian. — A  person  appointed  according 
to  the  laws  of  any  other  state  or  country,  to  take  charge  of  the 
estate  of   an  idiot  or  insane  person    not  a  resident  of  this  state, 

1  See  paragraph  6,  below. 

2  §  5772,  as  am.  83  v.  83.     See  Long  v.  Barnard,  6  Bull.  t>35. 

The  finding  of  the  court,  that  the  person  assuming  to  act  as  guardian  in 
partition  proceedings  under  the  act  of  1820  is  such  guardian,  imports  abso- 
lute verity,  and  is  sufficient,  prima  facie,  to  show  that  the  court  had  ob- 
tained jurisdiction  over  the  ward,  Merritt  v.  Home,  5  0.  S.  307;  and 
under  that  act,  where  all  the  persons  interested  in  the  land  had  the  same 
guardian,  he  might  appear  ex  parte,  and  process  was  unnecessary  to  give 
the  court  jurisdiction.     Goudy  v.  Shanks,  8  0.  415. 

In  proceedings  in  partition,  the  acts  of  a  guardian  of  a  minor,  done  in 
good  faith,  are  binding  upon  his  ward.     Bohart  v.  Atkinson,  14  O.  228. 

Where  a  minor,  in  such  case,  on  arriving  at  full  age,  ratifies  the  acts  of 
his  guardian,  by  receiving  and  appropriating  the  proceeds  of  the  sale  in  par- 
tition with  full  knowledge  of  the  facts,  he  is  estopped  in  equity  from  taking 
advantage  of  a  mere  irregularity  in  the  proceedings.     1846.     lb. 

If,  upon  sale  of  the  land  under  such  a  proceeding,  the  husband  of  the  in- 
fant, acting  as  her  guardian,  with  a  full  knowledge  of  the  facts,  acknowledges 
such  person  to  have  been  guardian,  and  receives  from  him  as  such  the  con- 
sideration money  for  the  property,  he  will  be  estopped  to  prove  that  such 
person  was  not  duly  appointed,  and  can  not,  after  the  death  of  the  wife,  con- 
trovert the  jurisdiction  of  the  court  over  the  infant.  The  estoppel  is  equally 
effectual  at  law  and  in  chancery.  One  who  has  induced  another  to  part  with 
his  money  or  property,  and  has  taken  the  fruits  of  a  judicial  proceeding,  is 
precluded  from  afterward  questioning  its  regularity,  or,  by  evidence  aliunde, 
impairing  its  effect.     1855.    Merritt  v.  Home,  5  0.  S.  307. 

Sections  2  and  9  of  the  statute  or"  1820  (2  Chase,  1162)  authorized  guard- 


183  PARTITION.  [v!HAP.    11,4-5, 

may,  upon  being  duly  authorized  in  this  state  to  take  charge  of 
such  estate  situated  in  this  state,  act  in  the  partition  of  such  es- 
tate to  the  same  extent  that  the  guardian  of  an  idiot  or  insane 
person  is  authorized  to  do  by  the  last  preceding  paragraph!1 

4.  Who  may  be  compelled  to  partition. — Tenants  in  common, 
and  coparceners  of  any  estate  in  lands,  tenements,  or  heredita- 
ments within  the  state,  may  be  compelled  to  make  or  suffer  par- 
tition thereof  in  manner  prescribed  below.2 

5.  Where  proceedings  for  partition    may   be   had. — When    the 

ians  of  minors  to  bring  petition  and  do  any  act  necessary  to  make  partition 
of  the  land  of  their  wards.  Where  one  was  a  guardian  of  all  interested  in 
the  land,  having  the  right  hoth  to  institute  and  defend,  or  consent  to  pro- 
ceedings, no  process  of  an  adversary  nature  was  necessary  to  confer  juris- 
diction upon  the  court.     1838.    Goudy's  Lessee  v.  Shank,     8  0.  415. 

J§  5773. 

2  g5754. 

Neither  reversioners  nor  remaindermen  can  have  partition,  the  right  only 
extending  to  those  who  have  the  possession,  or  an  immediate  right  to  the 
possession  of  the  lands  sought  to  be  aparted,  Tabler  v.  Wiseman,  2  0.  S. 
207;  Davison  v.  Wolf,  9  0.  73;  but  the  owner  of  a  life  estate  in  the  whole, 
or  a  part  of  the  tract,  who  also  owns  an  interest  in  the  remainder,  may  have 
partition.     Morgan  v.  Staley,  11  0.  389;  Tabler  v.  Wiseman,  above. 

A  right  of  entry,  without  actual  seizin,  there  being  no  intervening  estate, 
will  entitle  a  party  to  partition.     Tabler  v.  Wiseman,  above. 

A  partition  operates  only  upon  the  possession,  and  does  not  create  any 
new  title,  Tabler  v.  Wiseman,  2  0.  S.  207;  McBain  v.  McBain,  15  0.  S. 
337  ;  and  when  parties  to  a  proceeding  for  partition  are  made  such  by  pub- 
lication and  without  actual  notice,  they  are  not  estopped  thereby  from  setting 
up  their  legal  title.     McBain  v.  McBain,  supra. 

An  answer  to  a  petition  for  partition,  denying  that  the  plaintiffs  have  any 
title  to  or  interest  in  the  premises,  does  not  oust  the  court  of  jurisdiction. 
Perry  v.  Richardson,  27  0.  S.  110. 

The  fact  that  two  actions  for  partition  were  prosecuted  at  the  same  time 
does  not  vitiate  the  regular  proceedings  in  the  one  upon  which  partition  is 
made.     Smith  v.  Barber,  7  O.  2  pt.  118. 

The  regularity  of  proceedings  in  partition  can  not  be  inquired  into  in  a 
collateral  proceeding.  Wilson  v.  Bull,  10  0.  250;  Bohart  v.  Atkinson,  14 
U.  228. 

A  purchaser  from  one  tenant  in  common  can  not  drive  the  owner  of  a 
paramount  title,  upon  later  purchasers  of  an  interest  in  the  land  from  other 
tenants  in  common.     Dennison  v.  Foster,  9  0.  126. 

When  separate  interests  have  been  acquired  under  an  erroneous  partition 
chancery  will  exercise  jurisdiction  to  bring  all  parties  before  the  court,  and 


CHAP.   11,  6-8.]  PARTITION.  189 

estate  is  situate  in  one  county,  the  proceedings  must  be  had  in 
that  county  ;  and  when  situated  in  two  or  more  counties,  the 
proceedings  may  be  had  in  any  county  wherein  a  part  of  such 
estate  is  situate.1 

6.  Who  may  file  petition,  and  what  to  set  forth. — A  person  en- 
titled to  partition  of  an  estate  may  file  his  petition  therefor  in 
the  court  of  common  pleas,  setting  forth  the  nature  of  his  title, 
and  a  pertinent  description  of  the  lands,  tenements,  or  heredita- 
ments of  which  partition  is  demanded,  and  naming  each  tenant 
in  common,  coparcener,  or  other  interested  person,  as  defendants 
therein.2 

7.  The  order  of  partition. — If  the  court  find  that  the  plaintiff 
has  a  legal  right  to  any  part  of  such  estate,  it  must  order  par- 
tition thereof  in  favor  of  the  plaintiff,  or  all  parties  in  interest, 
appoint  three  disinterested  and  judicious  freeholders  of  the 
vicinity  to  be  commissioners  to  make  the  partition,  and  order  a 
writ  of  partition  to  issue.3 

8.  The  writ  of  partition. — The  writ  of  partition  may  be  directed 
to  the  sheriff  of  either  of  the  counties  in  which  anj'  part  of  the 

while  it  preserves  all  substantial  rights,  will  so  mould  them,  in  making  a  new 
division  of  the  land,  as  to  impose  burdens  where,  in  equity,  they  ought  to 
fall,  and  thus  diminish,  as  far  as  practicable,  the  evils  of  previous  errors. 
Dawson  v.  Lawrence,  13  0.  544. 

1  §5755. 

2  §5756. 

Where  judicial  proceedings  are  offered  in  evidence,  a  party  to  them  can 
not  avoid  their  effect  on  the  ground  of  a  slight  mistake  in  his  name;  the 
mistake  must  be  such  as  that  the  person  can  not  be  identified,  or  as  to  de- 
scribe another,  and  therefore  the  record  is  good  if  it  contain  the  name 
Pillsby  for  Pillsbury.     Pillsbury  v.  Dugan,  9  0.  117. 

The  plaintiff  is  bound  to  set  forth  in  his  petition  the  title  and  interests  of 
the  several  tenants,  and  to  sustain  the  same  by  proof,  Harman  v.  Kelly,  14 
0.  502;  the  owner  of  the  premises,  although  they  are  misdescribed  in  the 
petition,  may  come  in  and  defend,  and  when  it  appears  that  a  part  of  the 
persons  claimed  to  be  tenants  in  common  have  no  interest  in  the  land,  the 
petition  can  not  be  maintained,  lb.;  and  a  title  in  fee,  acquired  by  posses- 
sion, may  be  shown  to  defeat  the  partition,     lb. 

A  plaintiff  who  has  the  like  interest  in  several  tracts,  can  not  join  as  de- 
fendant in  a  single  action  for  partition  the  different  persons  who  each  own 
an  interest  in  only  one  of  the  tracts.     Prentiss'  case,  7  0.  2  pt  129. 

8 1  5757. 


190  PARTITION.  [CHAP.  11,  9-12. 

estate  lies,  an  J  must  command  bim  that,  by  the  oaths  of  the 
commissioners,  which  oath  may  be  administered  by  him,  be  cause 
to  be  set  off  and  divided  to  the  plaintiff,  or  each  party  in  interest, 
such  part  and  proportion  of  the  estate  as  the  court  shall  order.1 

9.  Duty  of  commissioners  in  making  partition. — In  making  such 
partition,  the  commissioners  must  view  and  examine  the  estate, 
and,  on  their  oaths,  set  apart  the  same  in  such  lots  as  will  be 
most  advantageous  and  equitable,  having  due  regard  to  the  im- 
provements, situation,  and  quality  of  the  different  parts  thereof.2 

10.  Their  duty  when  partition  of  more  than  one  tract  demanded. 
When  partition  of  more  than  one  tract  is  demanded,  the  com- 
missioners must  set  off  to  each  plaintiff  or  party  in  interest,  his 
proper  proportion  in  each  of  the  several  tracts,  unless  the  several 
tracts  are  owned  by  the  same  proprietors  in  the  same  proportion 
in  each  tract,  in  which  case  the  whole  share  of  any  proprietor, 
in  all  the  several  tracts,  may  be  set  off  to  such  proprietor  ac- 
cording to  the  best  discretion  of  the  commissioners.3 

11.  Amicable  partition. — Before  a  writ  of  partition  is  issued 
the  person  of  whom  partition  is  demanded  may  appear  in  court, 
in  person  or  by  attorney,  and  consent  to  a  partition  of  the  es- 
tate, agreeably  to  the  prayer  and  facts  set  forth  in  the  petition. 
Such  amicable  partition,  when  made  and  recorded,  will  be  valid 
and  binding  between  the  parties  thereto.4 

12.  Commissioners  to  appraise  land  when  they  can  not  divide  it ; 
election  of  party  to  take  at  appraisement. — When  the  commissioners 
are  of  opinion  that  the  estate  can  not  be  divided  according  to 
the  demand  of  the  writ  without  manifest  injury  to  the  value 
thereof,  they  must  return  that  fact  to  the  court,  with  a  just  val- 
uation of  the  estate;  whereupon,  if  the  court  approve  of  the 
return,  and  one  or  more  of  the  parties  elect  to  take  the  estate  at 
such  appraised  value,  the  same  must  be  adjudged  to  him  or  them, 
upon  his  or  their  paying  to  the  other  parties  their  proportion  of 

'§5758. 

2§  5759.  In  making  partition  among  several  tenants  in  common  of  sev- 
eral tracts  of  land,  owning  in  the  same  proportion,  it  is  regular  to  assign  to 
any  one,  or  to  each  one,  an  entire  tract.     7  0.  2  pt.  118. 

3  2  5760. 

4  ?  5761,  as  amended,  78  O.  L.  253.  This  amendment  provides  for  the 
making  of  a  deed  to  each  party  by  the  sheriff. 


CHAP.   11,   13.]  PARTITION.  191 

the  appraised  value  thereof,  according  to  their  respective  rights, 
or  securing  the  same  as  provided  below.1 

13.  Terms  of  payment  when  estate  taken  by  party ;  execution  of 
conveyances.— If  one  or  more  of  the  parties  elect  to  take  the  es- 
tate at  the  appraised  value,  the  terms  of  payment,  unless  the 
court,  on  good  cause  shown,  by  special  order,  direct  and  require 
tin-  enl ire  payment  to  be  made  in  cash,  or  unless  all  the  parties 
in  interest  agree  thereon,  must  be  one-third  cash,  one-third  in 
one  year,  and  one-third  in  two  years,  with  interest,  the  deferred 
payments  to  be  secured  to  the  satisfaction  of  the  court;  and  on 
payment  being  made  in  full,  or  in  part,  with  sufficient  security 
for  the  remainder,  as  above  provided,  the  sheriff  must,  according 
to  the  order  of  the  court,  make  and  execute  a  conveyance  to  the 
party  electing  to  take  the  same.2 


1  §  5762.  A  person  residing  thereon,  but  having  no  interest  therein,  was 
made  a  party  to  a  proceeding  to  partition  the  land  among  the  tenants  in 
common,  and  a  valuation  being  returned,  he  elected  to  take  the  same  thereat, 
and  the  election  being  confirmed  and  deed  made:  Held,  that  he  took  a  good 
title  to  the  land.     Rogers  v.  Tucker,  7  0.  S.  417. 

A  husband  and  wife  united  in  a  proceeding  for  partition,  pending  which 
the  wife  died,  and  a  valuation  being  returned,  the  husband  elected  to  take 
the  land  and  received  a  deed :  Held — 

1.  That  he  took  the  estate  of  the  other  coparceners,  and  the  heirs  of  the 
wife  could  not  claim  that  his  election  inured  to  their  benefit. 

2.  That  as  to  the  interest  which  had  been  his  wife's  and  in  which  he  had 
curtesy,  it  was  not  affected  by  the  election  and  deed,  and  the  husband  hav- 
ing died,  the  heirs  were  entitled  to  recover  the  land,  Foster  v.  Dugan,  8  0- 
87;  and  a  husband,  who  is  also  a  tenant  in  common,  is  competent  to  make 
partition  of  the  wife's  real  estate,  but  the  right  he  or  his  grantee  acquires  by 
the  proceeding  in  partition  does  not  extinguish  her  right,  which  survives  to 
her  or  her  heirs.     Foster  v.  Dennison,  9  O.  121. 

When  a  division  of  the  land  has  been  reported  by  the  commissioners,  and 
possession  was  taken  in  severalty  under  it,  and  improvements  made,  it  will 
not,  after  the  lapse  of  several  years,  be  disturbed,  although  no  entry  of  con- 
firmation of  the  report  was  made  by  the  court.    Piatt  v.  Hubbell,  5  0.  243. 

2  §5763.  A  sale  in  partition  of  real  estate  held  in  common  divests  the 
wife  of  a  co-tenant  of  her  inchoate  right  of  dower  therein,  and  passes  the 
entire  estate  to  the  purchaser.     Weaver  v.  Gregg,  6  0.  S.  547. 

Where  there  is  no  statutory  requirement  in  cases  of  partition,  requiring  a 
mortgage  on  the  premises  to  be  given  to  secure  the  price,  a  guardian  may, 
in  order  to  affect  the  partition,  allow  his  ward's  money  to  be  secured  on  other 
real  estate;  and  if  a  loss  accrue,  the  guardian  will  not  be  liable  if  he  acted 


192  PARTITION.  [cnAP.  11.  11-16. 

14.  Sale  of  the  estate  when  the  parties  do  not  elect  to  take  the  same. 
If  no  such  election  to  take  the  estate  be  made,  the  court  may,  at 
the  instance  of  a  party,  make  an  order  for  the  sale  thereof  at 
public  auction,  b}-  the  sheriff  who  executed  the  writ  of  partition, 
or  his  successor  in  office.1 

15.  How  such  sale  conducted,  and  terms  thereof. — All  such  sales 
must  be  made  at  the  door  of  the  court-house,  unless  the  court, 
for  good  cause,  direct  the  same  to  be  made  on  the  premises,  and 
must  be  conducted  in  all  other  respects  as  a  sale  upon  execution, 
except  that  it  will  not  be  necessary  to  appraise  the  estate  ;  but 
the  estate  can  not  he  sold  for  less  than  two-thirds  of  the  appraised 
value  thereof,  as  returned  by  the  commissioners;  and  unless  the 
court,  by  special  order,  direct  and  require,  on  good  cause  shown, 
the  entire  payment  to  be  made  in  cash,  the  purchase  money  will 
be  payable  one-third  on  the  day  of  sale,  one-third  in  one  year, 
and  one-third  in  two  years  thereafter,  with  interest." 

16.  Confirmation  of  sale,  and  execution  of  conveyances. — On  the 
return  by  the  sheriff  of  his  proceedings,  the  court  must  examine 
the  same  ;  if  sale  has  been  made,  and  the  court  approve  such 
sale,  the  sheriff,  on  receiving  payment  of  the  consideration  money, 
or  taking  sufficient  security  therefor,  to  the  satisfaction  of  the 
court,  must  execute  and  deliver  a  deed  to  the  purchaser.3 

in  good  faith  and  with  ordinary  prudence.     In  re  Spencer's  Appeal,  3  W. 
L.  M.  408. 

When  at  a  partition  among  devisees,  one  of  them  had  an  inchoate  right 
of  dower  in  premises  set  off  to  another,  which  subsequently  ripened  into  a 
perfect  estate,  she  will  not  be  estopped  to  claim  her  dower  against  her  co- 
partitioners,  but  the  court  will  enforce  contribution  from  all  the  parties  to 
the  partition,  to  make  good  to  the  person  in  whose  share  the  dower  is  as- 
signed his  equal  share  in  the  estate  remaining  after  the  assignment  of 
dower.     Walker  v.  Hall,  15  0.  S.  355. 

1  §  5764. 

2  §5765.  One  of  the  terms  of  a  sale  on  partition  being  that  possession  of 
the  premises  was  reserved  to  the  tenants  till  the  expiration  of  a  current 
lease,  and  the  deed  to  the  purchaser  not  having  been  delivered  till  after  the 
expiration  of  the  lease,  it  was  held  that  the  tenants,  and  not  the  purchaser, 
were  entitled  to  the  rents  reserved  in  the  lease.  Black  v.  George,  26  0. 
S.  629. 

3  §5766.  A  misrecital  in  a  sheriff's  deeds  does  not  estop  the  purchaser 
from  showing  what  the  fact  was,  and  may  be  corrected.  Glover  v.  Ruffin, 
6  0.  355. 


CHAP.  11,  17-19.]  PARTITION.  193 

17.  Distribution  of  proceeds ;  sheriff's  liability.  The  money  or 
securities  arising  from  a  sale  of,  or  an  election  to  take,  the  estate, 
must  be  distributed  and  paid,  by  order  of  the  court,  to  the  par- 
ties entitled  thereto,  in  lieu  of  their  respective  parts  and  propor- 
tions of  the  estate,  according  to  their  just  rights  therein;  and 
all  receipts  of  such  money  or  securities  by  the  sheriff  will  be  in 
his  official  capacity,  and  his  sureties  on  his  official  bond  will  be 
liable  for  an}-  misapplication  thereof.1 

18.  Proceedings  when  estate  has  been  once  offered  and  not  sold. — 
When  the  estate  has  been  once  offered  and  not  sold,  an  alias 
writ  for  the  sale  thereof  may  issue  as  often  as  need  be;  and  the 
court  may  order  a  revaluation,  by  three  judicious  and  disinter- 
ested freeholders  of  the  vicinity,  to  be  appointed  by  the  court, 
and  direct  a  sale  of  the  estate  at  not  less  than  two-thirds  of  such 
revaluation,  or,  if  the  court  deem  it  for  the  interest  of  the  par- 
ties, it  may  order  a  sale  without  such  revaluation,  at  not  less  than 
such  sum  as  it  may  fix.2 

19.  When  successor  of  sheriff  who  made  sale  to  execute  convey- 
ance.— When  a  conveyance  of  land  sold,  or  elected  to  be  taken, 
is  not  made  by  the  officer  who  made  the  sale,  the  court,  being 
first  satisfied  that  such  sale  or  election  was  regularly  made,  and 

A  deed  executed  by  the  sheriff  during  his  term  of  office,  but  acknowledged 
after  his  term  had  expired,  is  good,  Foster  v.  Dugan,  8  0.  87;  but  a  sheriff's 
deed  without  a  sea!  is  insufficient  to  pass  the  title.  Merritt  v.  Home,  5  0. 
S.  307. 

The  purchaser  of  land  at  a  sale  on  partition,  takes  the  same  discharged 
of  the  lien  of  a  judgment  against  a  tenant  in  common  therein,  rendered  after 
the  order  of  sale  was  made,  and  the  remedy  of  the  judgment  creditor  is 
against  the  co-tenant's  interest  in  the. proceeds  of  sale.  Cradelbaugh  v- 
Pritchett,  8  0-  S.  646. 

1  \  5767.  A  failure  of  the  sheriff  to  return  or  pay  over  the  purchase  money 
or  securities  by  him  received,  does  not  affect  the  title  of  the  purchaser. 
Goudy  v.  Shank,  8  0.  415;  see  also  Collins  v.  Skillen,  15  0.  S.  382;  and 
Griffin  v.  Underwood,  lb.  389. 

The  sheriff  can  not  release  a  mortgage  given  for  the  deferred  payments, 
although  it  was  given  to  the  sheriff  himself  for  the  use  of  specified  parties 
entitled  to  the  payments,  and  the  purchaser,  and  those  claiming  under  him 
are  affected  with  constructive  notice  of  the  lien  of  the  parties  for  whose  use 
the  mortgage  was  made.  Welsh  ».  Freeman,  21  0.  S.  402;  Preston  v.  Comp- 
ton,  30  0.  S.  299. 

2  §  5768. 


194  PARTITION  [chap.   11,  20-21. 

that  the  purchase-money  has  been  fully  paid  or  secured,  may,  on 
motion,  order  the  sheriff  of  the  county,  or  officer  performing  the 
duties  of  sheriff,  to  execute  and  deliver  to  the  purchaser,  or  per- 
son electing  to  take  the  property,  a  deed  for  the  lands  so  sold 
or  elected  to  be  taken.1 

20.  When  widow  is  entitled  to  dower,  or  an  interest  is  subject  to  a 
life  estate,. — When  a  widow  is  entitled  to  dower  in  an  estate  of 
which  partition  is  sought,  dower  must  be  assigned  her  therein, 
except  in  the  following  cases  :  1st.  When  an  assignment  thereof 
has  already  been  made.  2nd.  When  she  has,  by  answer,  elected 
to  be  endowed  out  of  the  proceeds  of  a  sale  of  the  estate,2  and 
the  commissioners  do  not  make  partition,  but  return  a  valuation 
of  the  estate.  3d.  When  the  right  of  dower  extends  only  to  an 
undivided  interest  in  the  estate.  In  the  latter  case,  and  in  cases 
where  an  undivided  interest  is  subject  to  a  life  estate,  and  the 
tenant  for  life  has  not,  by  answer,  elected  to  receive  the  value  of 
his  estate  out  of  the  proceeds  of  a  sale  of  the  interest,  the  com- 
missioners may,  if  an  appraisement  of  the  estate  is  to  be  re- 
turned, assign  the  dower,  or  set  off  the  life  estate,  or,  if  they  find 
it  for  the  interest  of  the  parties  so  to  do,  they  may  appraise  the 
whole  interest,  and  the  widow  and  the  tenant  for  life  will  re- 
ceive the  value  of  their  interests  out  of  the  proceeds  of  a  sale 
thereof.3 

21.  Commissioners  appointed  to  partition  estate  to  assign  dower. — 
The  commissioners  appointed  by  the  court  to  make  partition 
must  set  off  to  such  widow  her  dower  in  the  estate  ;  and  in  the 
performance  of  such  duty  they  must  be  governed  in  all  respects 
by,  and  the  proceedings  must  conform  to,  the  provisions  pre- 
scribing the  duties  of  commissioners  in  assigning  dower,  in  sec- 
tion 5707  to  5725,  inclusive,  of  the  Revised  Statutes." 

2  See  paragraphs  68-73,  chapter  6. 

:1£5770.  Dower  being  assigned  in  a  partition  action  by  an  annuity- 
charged  on  the  lands,  and  the  court  having  ordered  that  the  parties,  or  their 
representatives  or  assigns,  should  pay  the  installments  as  they  became  due, 
and,  in  default  of  payment,  that  execution  should  issue  therefor,  it  was  held 
that  the  order  was  void  for  uncertainty,  and  that  the  remedy  of  the  doweress 
was  by  action  to  enforce  the  lien  on  the  land.     Miller  v.  Peters,  25  O.  S.  270 

♦2  5771. 


CHAP.  11,  22.]  PARTITION.  195 

22.  Actions  by  one  parcener  against  another,  etc. — One  tenant  in 
common,  or  coparcener,  may  recover  from  another  his  share  of 
rents  and  profits  received  by  such  tenant  in  common  or  copar- 
cener from  the  estate,  according  to  the  justice  and  equit}^  of  the 
case;  and  one  parcener  may  maintain  an  action  of  waste  against 
another;  but  no  parcener  will  have  or  possess  any  privileges 
over  another,  in  any  election,  division,  partition,  or  matter,  to  be 
made  or  done,  concerning  lands  which  have  descended.1 


196  OCCUPYING  CLAIMANTS.  [CHAP.  12,  1-2. 


CHAPTER   12. 

OCCUPYING  CLAIMANTS  TO  REAL  ESTATE. 

rights  and  obligations  op  guardians  and  wards  who  are,   or  have 
claims  adverse  to,  such  claimants. 

Par.  Par. 

1.  What    position   ward  may   oc-  5.  Proceedings    if    verdict   is    for 
cupy.  occupying  claimant. 

2.  In  what  cases  such  claimant  to  6.  Where  a  writ  of  possession  will 
be  paid  for  improvements.  issue. 

3.  Damages,    value    of    improve-  7.  When    a  claimant  elects  to  re- 
ments,  etc.,  determined  by  jury.  ceive  value  of  land. 

4.  Judgment    and     execution    on  8.  When   occupant   may  have  ac- 
verdictfor  plaintiff.  tion  for  title. 

1.  What  position  ward  may  occupy. — The  ward  may  be  either 
the  occupying  claimant,  or  the  adverse  claimant  not  in  posses- 
sion referred  to  in  the  succeeding  paragraphs. 

2.  In  what  cases  such  claimant  to  be  paid  for  improvements. — A 
person  in  the  quiet  possession  of  lands  or  tenements,  and  claim- 
ing to  own  the  same,  who  has  obtained  the  title  to  and  is  in  pos- 
session of  the  same  without  fraud  or  collusion  on  his  part,  can 
not  be  evicted  or  turned  out  of  possession  by  any  person  who 
sets  up  and  proves  an  adverse  and  better  title,  until  the  occupy- 
ing claimant,  or  his  heirs,  are  fully  paid  the  value  of  all  lasting 
and  valuable  improvements  made  on  the  land  by  him  or  by  the 
person  under  whom  he  holds,  before  receiving  actual  notice  by 
the  commencement  of  suit  on  such  adverse  claim  to  turn  him 
out  of  possession,  unless  such  occupying  claimant  refuse  to 
pay  to  the  person  so  setting  up  and  proving  an  adverse 
and  better  title  the  value  of  the  land,  without  improvements 
made  thereon  as  aforesaid,  upon  demand  of  the  successful  claim- 
ant, or  his  heirs,  as  provided  below,  when,  1st.  Such  occupying 
claimant  holds  a  plain  and  connected  title,  in  law  or  equity,  de- 
rived from  the  records  of  a  public  office ;  or,  2d.  Holds  the  same 


CHAP.  12.]  OCCUPYING  CLAIMANTS.  197 

by  deed,  devise,  descent,  contract,  bond,  or  agreement,  from  and 
under  a  person  claiming  title  as  aforesaid,  derived  from  the 
records  of  a  public  office,  or  by  deed  duly  authenticated  and 
recorded  ;  or,  3d.  Under  sale  on  execution,  against  the  person 
claiming  title  as  aforesaid,  derived  from  the  records  of  a  publie 
office,  or  by  deed  duly  authenticated  and  recorded;  or,  4th.  Under 
a  sale  for  taxes  authorized  by  the  laws  of  this  state,  or  the  laws  of 
the  territory  north-west  of  the  river  Ohio  ;  or,  5th.  Under  a  sale 
and  conve}-ance  made  by  executors,  administrators,  or  guardians, 
or  by  any  other  person  or  persons,  in  pursuance  of  an  order  of 
court,  or  decree  in  chancery,  where  lands  are  or  have  been 
directed  to  be  sold  ; *  or,  has  possession  under  tax  title.2 

1  §  5786.  The  office  of  township  trustee,  in  which  the  leases  of  school 
lands  made  by  them  are  recorded,  is,  as  to  such  leases,  a  public  office  within 
the  meaniug  of  this  section.     Hart  v.  Johnson,  6  0.  538. 

The  words  "  by  deed  duly  authenticated  and  recorded"  mean  a  deed  to  a 
person  under  whom  the  occupant  claims,  and  not  a  deed  to  the  occupant 
himself  overruling  Glick  v.  Gregg,  19  0.  57;  but  it  must  he  a  deed  ap- 
parently conveying  an  estate  which  will  justify  him  in  making  improve- 
ments; therefore,  a  tenant  for  life  obtaining  his  title  and  possession  with 
knowledge  of  the  quantity  of  his  estate,  is  not  entitled  to  the  benefit  of  the 
statute.     Beardsley  o.  Chapman,  1  0.  S.  118. 

A  purchaser  of  real  estate  at  an  administrator's  sale,  if  evicted  by  the 
heir,  is  entitled  to  the  benefit  of  this  statute,  Longworth  v.  Wolfington,  6  0. 
9  ;  and  so  is  a  purchaser  upon  a  sale  under  execution,  Seller's  v.  Corwin,  5 
0.  398;  but  a  purchaser  from  a  judgment  debtor  of  land  actually  levied 
upon  by  execution  is  not  so  entitled.     Vincent  v.  Goddard,  7  0.  2  pt.  188. 

A  person  entering  upon  land,  under  color  of  title,  paying  taxes  and  mak- 
ing improvements  as  owner,  being  ejected  at  law,  can  not  sustain  a  bill  in 
equity  for  compensation  and  reimbursement  against  the  rightful  owner, 
Winthrop  v.  Huntington,  3  0.  327  ;  but  where  the  rightful  owner  asked  to 
have  his  title  quieted  against  claimants  under  a  sale  similar  to  that  in  Win- 
throp v.  Huntington,  the  court  required  him  to  reimburse  the  defendant  for 
taxes  paid  on  the  land.     Nowler  v.  Coit,  1  0.  519. 

The  provisions  of  this  statute  do  not  extend  to  the  case  of  valuable  im- 
provements made  by  a  tenant  in  common  under  a  will  hj'  which,  in  the  con- 
tingency of  his  dying  without  issue,  the  survivor  took  the  estate.  Taylor  v. 
Foster,  22  0-  S.  255. 

A  partition  which  was  made  regardless  of  a  claim  for  improvements,  valid 
under  this  statute,  will  not  be  enjoined  when  the  occupying  claimant  is  in 
adverse  possession,  and  the  claimant  in  partition  will  have  to  prosecute 
ejectment.     Penrod  v.  Danner,  19  0.  218. 

An  occupying  claimant  will  not  be  presumed  to  know  any  defects  or  re 

2  §5787. 


198  OCCUPYING   CLAIMANT.  [dlAP.   12,  3-4. 

3.  Damages,  value  of  improvements,  etc.,  determined  by  jury. — If 
the  court  renders  judgment  against  the  occupying  claimant,1  a 
jury  must  be  impaneled  as  the  law  provides,  which  must  imme- 
diately view  the  premises,  and,  on  oath,  assess  the  value  of  all 
lasting  and  valuable  improvements  made  on  such  land  by  t'.ie 
occupying  claimant  before  he  received  notice  of  the  adverse  claim 
as  above  mentioned.  The  jury  must  also  assess  the  damages,  if 
auy,  sustained  by  waste,  including  timber,  etc.,  removed  or  de- 
stroyed, and  the  net  annual  value  of  rents  and  profits  of  the  land 
which  the  occupying  claimant  has  received  since  the  receipt  of  said 
notice  by  service  of  said  summons  ;  and  must  deduct  the  amount 
thereof  from  the  estimated  value  of  such  improvements;  and  the 
jury  must  also  find  the  value  of  the  land  at  the  time  the  judgment 
was  rendered  with  the  improvements  thereon,  and  the  value  of  the 
land  without  the  improvements  thereon,  or  damages  sustained  by 
waste,  including  removal  or  destruction  of  the  timber  or  other  val- 
uable material,  and  return  their  verdict  in  open  court  as  in  other 
civil  eases.2 

4.  Judgment  and  execution  on  verdict,  for  plaintiff. — If  the  jury 
report  a  sum  in  favor  of  the  claimant  not  in  possession,  on  the 
assessment  and  valuation  of  the  valuable  and  lasting  improve- 
ments, the  assessment  of  damages  for  waste,  and  the  net  annual 
value  of  the  rents  and  profits,  the  court  must  render  a  judgment 
therefor,  without  pleadings,  and  issue  execution  thereon,  as  iu 
other   cases;     or,   if    no    such    excess    be    reported,   then,  and  in 

citals  that  appear  in  deeds  prior  to  the  deed  of  his  grantor;  and  if  a  recital 
in  that  or  in  his  own  deed  shows  that  the  premises  once  belonged  to  a  third 
person,  it  will  not  defeat  the  occupant's  claim  to  the  benefit  of  this  statute. 
Beardsley  v.  Chapman,  1  O.  S.  118. 

The  mere  fact  that  the  occupant  had  notice  of  the  claim  which  is  success- 
fully asserted  is  not  conclusive  evidence  of  fraud  and  collusion  on  part  of 
the  purchaser,  but  he  may  show,  notwithstanding  snch  notice,  that  he  pur- 
chased in  actual  go  >d  faith,  and  made  his  improvements  in  the  honest  be- 
lief that  the  land  was  his  mvn.      Harrson  v.  Castner.  11  O.  R.  339. 

1  This  i9  a  separate  proceeding,  in  which  the  party  prevailing  is  entitled 
to  cost*,  though  he  be  the  party  ejected.       Martin's  case.  1  O.  156. 

2  2?  5788,  5789.     See  the=e  sections  as  amended.  87  (>.  L.  237. 

An  occupying  claimant  is  entitled  to  recover,  as  well  for  improvements 
made  by  himself,  or  the  person  under  whom  he  claims,  before  his  title  com- 
menced, as  for  those  made  afterward  Shaler  v.  Magin,  2  O.  235;  Davis  v. 
Powell,  13  O.  308.  But  he  can  not  recover  fur  improvements  made  out- 
side of  the  land  described  in  his  title-deeds.  Waldron  v.  Woodcock.  15 
O.  13. 


CHAP.  12,  5-8.]  OCCUPYING    CLAIMANTS.  199 

either  case,  the  claimant  not  in  possession  can  not  maintain  a 
suit  for  mesne  profits.1 

5.  Proceedings  if  verdict  is  for  occupying  claimant. — If  the  jury 
report  a  sum  in  favor  of  the  occupying  claimant,  on  the  assess- 
ment and  valuation  of  the  valuable  and  lasting  improvements 
deducting  therefrom  the  damages,  if  any,  sustained  by  waste, 
together  with  the  net  annual  value  of  the  rents  and  profits  which 
the  defendant  has  received  after  commencement  of  the  action, 
the  successful  claimant,  or  his  heirs,  or,  if  they  are  minors,  their 
guardians,  may  either  demand  of  the  occupying  claimant  the 
value  of  the  land  without  the  improvements  so  assessed,  and  ten- 
der a  deed  of  the  land  to  the  occupying  claimant,  or  may  pay 
the  occupying  claimant  the  sum  so  allowed  by  the  jury  in  his 
favor,  within  such  reasonable  time  as  the  court  shall  allow.2 

6.  When  a  writ  of  possession  will  issue.  — If  the  successful 
claimant,  his  heirs,  or  their  guardians,  elect  to  pay,  and  do  pay, 
to  the  occupying  claimant,  the  sum  reported  in  his  favor  by  the 
jury,  within  the  time  allowed  by  the  court,  then  a  writ  of  pos- 
session must  issue  in  favor  of  the  successful  claimant,  his  heirs, 
or  their  guardians.3 

7.  When  claimant  elects  to  receive  value  of  land. — If  the  suc- 
cessful claimant,  his  heirs,  or  their  guardians,  elect  to  receive  the 
value  of  the  land  without  improvements,  so  assessed  to  be  paid 
by  the  occupying  claimant,  and  tender  a  general  warranty  deed 
of  the  land  conveying  such  adverse  or  better  title,  within  the 
time  allowed  by  the  court  for  the  payment  of  the  money,  and 
the  occupying  claimant  refuse  or  neglect  to  pay  the  same  to  the 
successful  claimant,  his  heirs,  or  their  guardians,  within  the  time 
limited,  a  writ  of  possession  must  be  issued  in  favor  of  the  suc- 
cessful claimant,  his  heirs,  or  their  guardians.* 

8.  When  occupant  may  have  action  for  title. — The  occupying 
claimant,  or  his  heirs,  can  not  be  evicted  from  the  possession  of 

1 2  5792.  2§5793.  3  2  5794. 

*§  5795. 

It  is  necessary  that  the  successful  claimant  who  elects  to  convey  his  land 
tender  a  deed  with  covenants  of  warranty;  but  it  is  not  necessary  that  the 
deed  be  made  by  himself,  provided  it  conveys  the  title;  and  the  occupying 
claimant  is  not  entitled  to  interest  upon  the  valuation  until  the  election  ia 
made.     Wilkins  v.  Huse,  15  0.  285. 


200  OCCUPYING   CLAIMANTS.  [CIIAP.  12. 

such  land,  except  as  is  provided  in  the  two  preceding  para- 
graphs, where  an  application  is  made  for  the  valuo  of  improve- 
ments ;  and  in  all  cases  where  the  occupying  claimant,  or  his 
heirs,  pay  into  court  the  value  of  the  land,  without  improve- 
ments, within  the  time  allowed  by  the  court,  when  an  election 
has  been  made  by  the  successful  claimant,  his  heirs,  or  their 
guardians,  to  surrender  land  under  the  provisions  of  this  and 
the  preceding  paragraphs  of  this  chapter,  such  occupant,  or  his 
heirs,  may,  at  any  time  after  such  payment  is  made,  bring  an  ac- 
tion in  the  court  where  judgment  of  eviction  was  obtained,  and 
obtain  judgment  for  the  title  of  the  land,  if  the  same  had  not 
been  previously  conveyed  to  such  occupant  as  aforesaid.1 

wge. 


CHAP.  13,  1.1  ROAD    LAWS,  ETC.  201 


CHAPTER  13. 

ROAD    LAWS,     ETC.,  AS    DIRECTLY    AFFECTING    GUARDIANS 

AND  WARDS. 

Par.  Par. 

1.  As  to  new  roads,  and  changes  in  5-6.  Powers  of  guardians  as  to  one 
old  ones;  notice  to  guardians.  and  two-mile  assessment  pikes. 

2.  Guardians  and  others  may  ap-  7.  Assessment   for   streets;     duties 
peal  in  such  matters.  of  guardians  as  to,  etc. 

3.  Guardians  need  give  no  appeal  8.  Guardian  can  not  give  right  of 
bond.  way  over  ward's  land. 

4.  Appeals  by  claimant  of  damage;  9.  Certificates    for    road    material 
notice  to  guardian.  taken. 

10.  How  paid. 

1.  As  to  new  roads  and  changes  in  old  ones ;  notice  to  guardian. 
When  application  is  made  for  laying  out,  altering,  changing  the 
width  of,  or  vacating  any  county  road,  the  principal  petitioner 
must  give  at  least  six  days'  notice,  in  writing,  to  the  owner  or 
his  agent,  if  residing  within  the  county  ;  or,  if  such  owner  be  a 
minor,  idiot,  or  insane  person,  to  the  guardian  of  such  person, 
if  a  resident  of  the  county,  through  whose  land  the  road  is  pro- 
posed to  be  laid  out  and  established,  or  through  whose  land  tbe 
road  which  it  is  proposed  to  alter  or  vacate  may  have  been  pre- 
viously established,  and  also  six  days'  notice  to  the  viewers  and 
surveyor  named  in  the  order  of  the  commissioners,  of  the  time 
and  place  of  meeting,  as  specified  in  the  order  of  the  county 
commissioners  concerning  the  road,  and  of  the  day  by  which 
claims  for  compensation  must  be  filed  ;  and  the  principal  peti- 
tioner, if  the  road  is  proposed  to  be  laid  out,  altered,  or  vacated, 
on  any  lands  owned  by  a  non-resident  of  the  county,  must  cause 
a  notice  to  such  non-resident  to  be  published  for  four  con- 
secutive weeks  in  some  newspaper  published  in  such  county  j 
but  if  there  be  no  newspaper  published  therein,  then  in  some 
newspaper  in  an  adjoining  county  to  that  in  which  the  lands 
sought  to  be  affected  by  the  road  are  situate,  which  notice  shall 
state  the  time  and  place  of  the  meeting  of  the  viewers  and  sur- 
veyor, as  specified  in  the  order  of  the  commissioners,  and  also 
the  substance  of  the  petition.1 


1  2H638,  4042,  4045,  as  am.  80  O.  L.  111. 


202  ROAD    LAWS,  ETC.  [CHAP.  13,  2-5. 

2.  Guardians  and  others  may  appeal  in  such  matters. — An  ap- 
peal from  the  final  order  of  the  count}1-  commissioners  establish- 
ing a  county  road,  or  altering  or  vacating,  in  whole  or  in  part 
a  state  or  county  road,  or  changing  the  width  of  a  county  road, 
may  be  taken  to  the  probate  court  of  the  same  county  by  any 
person  having  an  estate  in  fee,  for  life,  or  years,  in  any  lands 
or  tenements,  situate  in  any  township  in  the  county,  in  or 
through  which  township  such  new,  altered,  changed,  or  vacated 
road  passes,  or  by  the  husband  of  any  married  woman,  or  guard- 
ian of  any  ward,  having  such  an  estate.1 

3.  Guardians  need  give  no  appeal  bond. — Appellants  must,  to 
perfect  such  appeal,  give  such  appeal  bond  as  the  law  prescribes, 
on  or  before  the  twentieth  day  after  the  entry  of  the  order  ap- 
pealed from;  but  minors,  idiots  or  lunatics,  or  their  guardians, 
respectively,  may  appeal  without  giving  bond,  by  causing  an  en- 
try to  that  effect  to  be  made  within  the  period  aforesaid,  by  the 
county  auditor,  in  the  record  of  the  commissioners.2 

4.  Appeals  by  claimant  of  damages ;  notice  to  guardian. —  The 
law  also  provides  that  every  claimant  of  compensation  and  dam- 
ages, on  account  of  the  establishment  or  alteration  of  a  county 
or  township  road,  or  alteration  of  a  state  road,  or  change  in 
width  of  a  county  road,  may  appeal  to  the  probate  court  from 
the  final  decision  of  the  county  commissioners  or  township 
trustees,  confirming  the  assessment  of  compensation  and  dam- 
ages made  by  the  viewers  in  his  behalf,  or  the  refusal  of  the 
viewers  to  award  damages  to  him,  and  also  provides  how  such 
appeal  shall  be  perfected  and  docketed,  and  how  notice  must  be 
served  on  all  interested  parties;  and  that  service  of  notice  upon 
a  guardian  will  be  sufficient  service  upon  his  ward.3 

5.  Powers  of  guardians  as  to  assessment  pike*. — Certain  improved 
free  roads,  designated  as  one  and  two-mile  assessment  pikes,  from 
the  fact  that  they  are  constructed  at  the  expense  of  property  situate 
within  one  or  two  miles  of  them,  may  he  huilr  by  the  county 
commissioners,  if  a  majority  of  the  resident  land-holders,  most  to 
be  benefited,  subscribe  a  petition  asking  for  such  road.  To  get 
such  a  road  constructed,  proceedings  must  be  had  in  the  probate 
court,   viewers  and   a  surveyor   must   be  appointed,    surveys,   re-  ■ 

«  ?  4688.  2  ?  4689.  3  §§  4699-4701. 


CHAP.  13,  6-7.]  ROAD    LAWS,    ETC.  203 

ports,  and  assessments  must  be  made,  damages  may  be  claimed 
and  recovered,  and  other  things  done  which  do  not  come  within 
the  scope  of  this  volume  to  describe  in  detail.1 

(i.  In  all  these  matters,  the  guardian  of  any  minor,  idiot, 
or  insane  person  may  act  for  his  ward,  and  all  his  acts  will 
be  binding  upon  the  ward;2  and  in  determining  the  majority 
above  mentioned,  minor  heirs  must  not  be  counted  for  or  against 
the  road,  unless  represented  by  legal  guardian  ;  and  the  action 
of  such  guardian  will  be  binding  upon  such  minor  heirs;  and  all 
heirs  or  owners,  either  adults  or  minors,  to  any  undivided  estate, 
will  be  entitled  to  only  one  vote.3 

7.  Assessments  for  streets,  etc. ;  duties  of  guardians  as  to,  etc. — The 
law  also  provides4  how  assessments  upon  property  may  be  made 
for  various  public  improvements,  including  the  laying  out,  im- 
proving, etc.,  of  streets,  alleys,  and  other  public  highways5  in  mu- 
nicipal corporations  ;  and  among  other  things  it  is  provided  that, 
in  cities  of  the  first  class,  or  in  corporations  in  counties  containing 
a  city  of  the  first  or  second  grade  of  the  first  class,  when  a  petition, 
subscribed  by  three-fourths  in  interest  of  the  owners  of  property 
abutting  upon  any  street  or  highway  of  any  description,  between 
designated  points,  is  regularly  presented  to  the  council  for  the  pur- 
pose, the  cost  of  any  improvement  of'  such  street  or  highway  may 
be  assessed  and  collected  in  equal  annual  installments,  proportioned 
to  the  whole  assessment,  in  a  manner  to  he  indicated  in  the  petition, 
or  if  not  so  indicated,  then  in  the  manner  which  may  he  fixed  by 
council  ;  and  the  interest  on  any  bonds  issued  by  the  corporation 
for  the  improvements,  together  with  the  annual  installments  pro- 
vided for,  must  he  assessed  upon  the  property  so  improved;  hut 
where  the  lot  or  land  of  one  who  did  not  subscribe  the  petition  is 
assessed,  such  assessment  must  not  exceed  twenty-five  per  cent  of 
the  value  of  his  lot  or  land  after  the  improvement  is  made;  pro- 
vided, that  whenever  in  the  title  of  the  Revised  Statutes  which 
relates  to  municipal  corporations,  the  petition  of  the  owners  of 
property  is   required,  a   married  women    shall  have  the  same  au- 

1  \\  4774-4864. 

2  H  4799,  4884.  See  also  \  4859. 

8 1  4799  ;  I  4836,  as  am.  80  O.  L.  25. 

*2  2262  and  following. 

6  §2263,  as  am.  85  O.  L.  229. 


204  ROAD   LAWS,    ETC.  [CHAP.    13,  8-10. 

thority  to  sign  that  she  would  have  if  unmarried  ;  and  the  guardians 
of  infants  or  insane  persons  may  sign  such  petition  on  behalf  of 
their  wards,  only  when  expressly  authorized  by  the  probate  court, 
on  good  cause  shown.1 

8.  Guardian  can  not  give  right  of  ivay  over  ward's  land. — Where  a 
road,  as  located,  passes  through  land  owned  by  minors,  the  right 
of  way  is  not  secured  therein  by  a  deed  executed  by  the  guardian 
of  such  minors,  without  authority  from  the  probate  court.  A 
guardian  has  no  power  to  make  such  a  conveyance,  and  as  against 
the  minors  it  is  void.2 

y.  Certificates  for  timber,  etc.,  taken  for  road. — A  supervisor  of 
roads,  or  a  superintendent  of  a  free  turnpike,  improved,  or  other 
macadamized  road  having  no  gate  thereon,  who  takes  any  timber, 
stone,  or  gravel,  for  the  purpose  of  making,  improving,  or  repair- 
ing any  road  or  structure,  or  repairing  any  bridge  or  crossway 
within  his  district,  must,  on  demand  of  the  guardian  of  any  ward, 
having  the  lands  in  charge  from  which  the  same  were  taken,  give 
a  certificate  showing  the  quantity  of  such  timber,  stone,  or  gravel, 
with  the  value  thereof  respectively,  and  the  time,  and  purpose  for 
which,  the  same  was  taken.3 

10.  Hoiv  paid. — Such  guardian  must  present  this  certificate  to 
the  township  trustees  of  the  proper  township,  at  any  regular  or 
called  session,  within  twelve  months  after  the  taking  of  such  tim- 
ber, stone,  or  gravel;  and  the  trustees,  if  satisfied  that  the  amount 
is  just  and  equitable,  must  cause  it  to  be  paid  out  of  the  proper 
fund ;  but  a  certificate  so  allowed  and  paid  by  the  trustees  must  not 
exceed  twenty-five  dollars  to  any  road  district  per  annum ;  any 
greater  amount  that  may  be  presented  must  be  examined,  and  if 
allowed,  must  be  certified  by  the  trustees  to  the  commissioners  of 
the  county,  with  the  accompanying  vouchers,  to  be  allowed  by 
them  if,  in  their  opinion,  the  same  is  just  and  equitable;  and  the 
commissioners  must  cause  the  same  to  be  paid  out  of  the  county 
funds  for  that  purpose.4 

1  \  2272,  as  am.  82  O.  L.  155.  For  numerous  notes  of  decisions  as  to  such 
assessments,  see  notes  to  §§  2263  and  2264,  Rev.  Stat,  of  Ohio.  See  note  5, 
p.  203. 

The  guardian  of  the  estate  of  an  imbecile,  is  the  proper  person  to  sisrn  a 
petition  for  street  improvements  affecting  the  property  of  the  ward.  [Ham. 
Dist.  Ct.]     Laird  v.  City,  5  Bull.  903;  9  Rec.  479. 

2  State  v.  Commissioners,  39  O.  S.  58.  3  §  4744.  *  g  4745. 


CHAP.   14,  1.] 


SCHOOL   LAWS. 


205 


CHAPTER  14. 


SCHOOL  LAWS,  AS  AFFECTING  GUARDIAN  AND  WARD. 


Par. 

1.  Where  wards  may  attend  school ; 

suspension  and  expulsion  from 
school;  rights  of  guardians  and 
wards,  etc. 

2.  How  books  supplied,  if  guardian 
can  not  purchase. 

3.  Penalties  tor  violation  of  preced- 
ing provisions. 

4.  What     children      must      attend 
school. 

5.  Unlawful  to  employ   unschooled 
children. 

6.  Penalties  for  so  doing. 

7.  As  to  certain  minors  who  can  not 
read  and  write  English. 

8.  Penalties  as  to. 

9.  Where   children  have  been  dis- 

charged from  employment  by 
reason  of  this  act. 


Par. 

10.  Habitual  truant?. 

11.  Truant  officers  to  bo  employed; 
compensation  of. 

12.  Truant  officers  to  make  daily  re- 

ports. 

13.  Duties  of  such  officers,  of  guard- 

ians, etc. 

14.  Proceedings    against    guardians, 
parents,  etc.;  penalty,  bonds,  etc. 

15.  Proceedings  against  truants,  etc. 

16.  Further      proceedings       against 

iruardians,  etc. 

17.  When  law  not  in  operation. 

18.  When  law  may  be  suspended  for 
a  time. 

19.  Duty  of  principals  and  teachers. 

20.  When   corporations   violate    this 
law. 

21.  Penalties  against  officers,  etc. 


Subdivision  I. — Voluntary  attendance,  expulsion,  etc.,  of 
wards  ;  books  for,  etc. 
1.  Where  ward  mmj  attend  school;  expulsion  from  school;  rights  of 
guardian  and  ivard,  etc. — The  schools  of  each  district  are  free  to  all 
youth  between  six  and  twenty-one  years  of  age,  who  are  children, 
wards,  or  apprentices  of  actual  residents  of  the  district,  including 
children  of  proper  age,  who  are  or  may  be  inmates  of  a  county  or 
district  children's  home  located  in  any  such  school  district,  at  the 
discretion  of  the  board  of  education  of  the  township  in  which  said 
school  district  is  located  ;  and  all  youth  of  school  age,  living  apart 
from  their  parents  or  guardians,  and  who  work  to  support  them- 
selves by  their  own  labor,  are  entitled  to  attend  school  free  in  the 
district  in  which  they  are  employed.     Each  board  of  education  may 


206  SCHOOL  LAWS.  [chap.  14,  2-4. 

admit  other  persons  upon  such  terms  or  upon  payment  of  such 
tuition  as  it  may  prescribe.1  No  pupil  can  be  suspended  from 
school  by  a  superintendent  or  teacher,  except  for  such  time  as  may 
be  necessary  to  convene  the  board  of  education  <>£  the  district  or 
the  directors  of  the  sub  district,  and  no  pupil  can  be  expelled  ex- 
cept by  a  vote  of  two-thirds  of  such  board  or  directors,  and  not 
until  the  parent  or  guardian  of  the  offending  pupil  has  been  notified 
of  the  proposed  expulsion,  and  permitted  to  be  heard  against  the 
same;  aud  no  scholar  can  be  suspended  or  expelled  from  any  school 
beyond  the  current  term  thereof.' 

2.  How  books  supplied,  if  guardian  can  not  purchase. — If  it  be 
shown  to  the  satisfaction  of  the  board  of  education  that  the  parent 
or  guardian  has  not  the  means  wherewith  to  purchase  for  his  child 
or  children  the  necessary  school  books  to  enable  him  to  comply 
with  the  requirements  of  this  chapter,  the  board  must  furnish  the 
same,  free  of  charge,  to  be  paid  for  out  of  the  contingent  fund  at 
the  disposal  of  the  board.3 

3.  Penalties  as  to  violation  of  preceding  provisions. — A  parent, 
guardian,  or  other  person  who  fails  to  comply  with  the  provisions 
of  this  subdivision,  will  be  liable  to  a  fine  of  not  less  than  two  nor 
more  than  five  dollars  for  the  first  offense,  nor  less  than  five  nor 
more  than  ten  dollars  for  each  subsequent  offense;  such  fine  must 
be  collected  by  the  clerk  of  the  board  of  education,  in  the  name  of 
the  state,  in  an  action  before  any  court  having  competent  jurisdic- 
tion ;  and  the  money  so  collected  by  each  clerk  must  be  paid  to  the 
county  treasurer,  and  be  applied  to  the  use  of  the  common  schools 
of  his  district.* 

Subdivision  II. — As  to  compelling  children  under  fourteen 

YEARS  OF  AGE  TO  ATTEND  SCHOOL  A  CERTAIN  LENGTH  OF  TIME 
EACH  YEAR. 

4.  Wliat  children  must  attend  school.  Duties  of  guardians,  etc. — All 
par.ents,  guardians,  and  other  person  who  have  care  of  children, 
must  instruct  them,  or  cause  them  to  be  instructed,  in  reading, 
spelling,  writing,  English  grammar,  geography  and  arithmetic ;  and 
every  parent,  guardian,  or  other  person  having  control  and  charge 

i  ?  4013,  as  am  ,87  O.  L.  316.  2  g  4014. 

3  i  4026,  as  am.,  87  ().  L.  317.  *  \  4027. 


CHAP.   14,  5.]  SCHOOL   LAWS. 


207 


of  any  child  between  the  ages  of  eight  and  fourteen  years,  must 
send  any  such  child  or  children  to  a  public  or  private  school  for  a 
period  of  not  less  than  twenty  weeks  in  city  districts  in  each  school 
year,  commencing  September  1,  ten  weeks  of  which  at  least  must 
be  consecutive,  which  must  commence  within  the  first  four  weeks 
of  the  first  term  of  the  school  year;  and  in  special,  village  and 
township  districts  not  less  than  sixteen  weeks  in  each  school  year, 
eight  of  which  must  be  consecutive,  unless  such  child  or  children 
are  excused  from  attendance  by  the  superintendent  of  the  public, 
private  or  parochial  schools  in  cities,  or  by  authority  of  the  board 
of  education  in  villages  and  townships,  when  it  shall  have  been 
shown  to  the  satisfaction  of  said  superintendent  or  said  board  that 
the  physical  or  mental  condition  of  such  child  or  children  has  been 
such  as  to  prevent  his,  her,  or  their  attendance  at  school,  or  that 
said  child  or  children  are  taught  at  home  by  some  qualified  person 
or  persons  in  such  branches  as  are  usually  taught  in  primary  schools. 
But  all  youth  between  eight  and  sixteen  years  of  age,  not  engaged 
in  some  regular  employment,  must  attend  school  for  the  full  term 
the  schools  of  the  district  in  which  they  reside  are  continued  in  the 
school  year,  unless  excused  for  the  reasons  named  in  this  paragraph  ; 
and  if  the  parents  or  guardians  having  legal  charge  of  such  youth 
fail  to  send  these  youth  to  school  regularly  for  said  full  term,  or  if 
said  youth  absent  themselves  from  school  without  satisfactory  ex- 
cuse, said  parents  and  guardians  and  said  youth  will  be  subject  to 
the  provisions  and  penalties  of  paragraph  13  of  this  chapter.1 

5.  Unlawful  to  employ  children  under  fourteen  years,  except. — No 
child  under  the  age  of  fourteen  years  can  be  employed  by  any  per- 
son, company  or  corporation  during  the  school  term,  and  while  the 
public  schools  are  in  session,  unless  the  parent,  guardian  or  other 
persons  having  care  of  such  child,  is  able  to  give  substantial  proof 
that  he  or  she  has  fully  complied  with  the  requirements  of  para- 
graph 4  above,  or  that  such  child  has  completed  the  usual  course 
of  primary  and  grammar  grades  in  some  public  or  private  school, 
and  such  person,  company  or  corporation  must  demand  such  proof 
before  giving  employment  to  any  minor,  and  must  make  a  record 

1  §  [4029,-1],  as  am.  87  O.  L.  316.  Certain  portions  of  this  law  seem  not 
to  affect  guardians;  but  it  also  seems  advisable  to  give  it  all,  so  as  to  enable 
its  required  parts  to  be  the  better  understood. 

14 


207a  school  laws.       [chap.  14, 6-9. 

of  said  proof  given,  and  shall  be  required,  upon  the  request  of  the 
officer  (hereinafter  provided  for),  to  allow  said  officer  to  examine 
the  said  record,  and  also  the  record  as  provided  for  in  section  6986aa 
of  the  Kevised  Statutes.1 

6.  Penalties. — Any  person,  company  or  corporation  employing 
any  child  contrary  to  the  provisions  of  this  subdivision  will  be  liable 
to  a  penalty  of  fifty  dollars  for  each  offense,  to  be  recovered  in  an 
action  for  debt  in  any  court,  or  before  any  justice  of  the  peace  hav- 
ing jurisdiction.  Such  action  must  be  brought  in  the  name  of  the 
clerk  of  the  board  of  education.1 

7.  Concerning  certain  minors  who  can  not  read  nor  write. — All 
minors  over  the  age  of  fourteen,  and  under  sixteen  years,  who  can 
not  read  and  write  the  English  language,  must  attend  school  at 
least  one-half  of  each  day,  or  attend  some  evening  school  organ- 
ized and  maintained  by  the  board  of  education,  or  take  regular 
private  instruction  from  some  person  qualified,  in  the  opinion  of  the 
superintendent  of  schools  in  cities,  and  the  clerk  of  the_  board  of 
education  in  special,  village  and  township  districts,  to  teach  such 
brandies  until  he  or  she  shall  obtain  a  certificate  from  the  superin- 
tendent of  schools  in  cities,  and  the  clerk  of  the  board  of  edu- 
cation in  special,  village  and  township  districts,  certifying  that  said 
minor  can  read  at  sight  and  write  legibly  simple  sentences  in  the 
English  language,  and  every  person,  company,  or  corporation  hav- 
ing such  minor  in  employment  is  required  to  exact  such  school 
attendance  from  such  minor,  and  be  prepared,  upon  demand  of  the 
officer  mentioned  above,  to  furnish  evidence  that  such  minor  does 
comply  with  the  requirements  of  this  chapter.2 

8.  Penalty. — Any  person,  company  or  corporation  failing  or  neg- 
lecting to  exact  such  school  attendance  from  such  minors  will  be 
liable  as  provided  for  in  paragraph  6  of  this  subdivision,  unless  such 
person,  company  or  corporation  has  made  provisions  for  the  private 
instruction  of  such  minors.2 

9.  As  to  children  discharged  from  employment,  etc. — Every  parent, 
guardian  or  other  person  having  charge  or  control  of  any  child  un- 
der the  age  of  sixteen,  who  has  been  discharged  from  any  business 
in  order  to  be   afforded  an  opportunity  to  receive  instructions  or 

1 1  [4029,-2].  g  2,  86  O.  L.  334. 
3  I  [4029,-3],  as  am.  87  O.  L.  143. 


CHAP.   14,  10-11.]  SCHOOL  LAWS.  2076 

schooling,  must  send  such  child  to  some  public  or  private  school 
until  such  child  shall  have  acquired  such  instruction  as  paragraph 
7  of  this  chapter  requires;  and  in  case  of  failure  on  the  part  of  said 
parent,  guardian  or  ottier  person  to  comply  with  the  provisions  of 
this  paragraph  and  of  paragraph  4  of  this  chapter,  unless  such 
child  shall  have  been  excused  from  such  attendance  by  the  super- 
intendent of  public  schools  or  the  clerk  of  the  board  of  education 
in  special,  village,  and  township  districts  for  reasons  stated  in  said 
paragraph  4,  such  parent,  guardian  or  other  person  will  be  deemed 
guilty  of  a  misdemeanor,  and  will,  on  conviction,  be  liable  to  fine 
of  not  less  than  five  dollars  or  not  more  than  twenty  dollars  for  the 
first  offense,  and  not  less  than  twenty  for  each  subsequent  offense, 
or  to  imprisonment  for  not  less  than  one  month  nor  more  than 
three.  Said  fines  are  to  be  paid  into  the  public  school  funds  of  the 
school  district  in  which  the  offense  occurs.1 

10.  Habitual  truants. — All  children  between  the  ages  of  seven 
and  fourteen  years  who  are  habitual  truants  from  school,  or  while 
in  attendance  at  any  public  or  private  school  are  incorrigible, 
vicious  or  immoral  in  conduct;  and  all  children  between  said  ages, 
and  all  minors  between  the  ages  of  fourteen  and  sixteen  who  cau 
not  read  and  write  the  English  language,  who  absent  themselves 
habitually  from  school,  and  habitually  wander  about  the  streets 
and  public  places  during  school  hours,  having  no  business  or  lawful 
occupation,  must  be  deemed  juvenile  disorderly  persons  and  subject 
to  the  provisions  of  this  act.2 

11.  Truant  officers  to  be  employed;  compensation  of.  In  cities  of 
the  first  and  second  class  the  board  of  education  of  said  cities  are 
required  to  employ  one  truant  officer  to  assist  in  the  enforcement 
of  this  subdivision,  said  truant  officers  to  be  vested  with  police 
powers,  and  are  authorized  to  enter  factories,  workshops,  stores  and 
all  other  places  where  children  may  be  employed,  and  perform  such 
other  services  as  the  superintendent  of  schools  or  the  board  of  edu- 
cation may  deem  necessary  to  the  preservation  of  the  morals  and 
good  conduct  of  school  children,  and  for  the  enforcement  of  this 
law;  and  in  special,  village  and  township  districts  the  board  of  edu- 
cation must  appoint  some  constable  or  other  person  as  truant  offi- 

1  I  [4029,-4],  as  am.  87  O.  L.  143. 

2  §  [4029,-5.] 


207  c  SCHOOL  laws.  [chap.  14, 12-14. 

cer,  with  the  same  power  as  said  officers  have  in  said  cities.  The 
compensation  of  such  officers  must  be  fixed  by  the  board  of  edu- 
cation.1 

12.  Truant  officers'  reports.— •The  truant  officers  must  make  dady 
reports  to  the  superintendent  of  public  schools  during  the  school 
term  in  cities,  and  to  the  clerk  ot  the  board  of  education  as  often 
as  the  clerk  shall  require  it  to  be  done  in  special,  village  and  town- 
ship districts,  and  he  must  also  keep  a  record  of  his  transactions, 
subject  to  the  inspection  of  the  members  and  officers  of  the  board 
of  educatiou,  and  the  clerk  of  the  board  of  education  must  provide 
suitable  blanks  for  said  truant  officer.2 

13.  Duty  of  truant  officers,  of  guardians,  etc.— Truant  officers  must 
examine  into  all  cases  of  truancy  when  any  such  come  before  their 
notice,  or  when  requested  to  do  so  by  the  superintendent  of  pub- 
lic schools,  or  by  the  board  of  education,  and  warn  such  truants, 
their  parents  or  guardians,  in  writing,  of  the  final  consequences  of 
truancy  if  persisted  in,  and  also  notify  the  parent,  guardian  or 
other  person  having  the  charge  or  control  of  any  child  between  the 
age  of  eight  and  fourteen  years,  that  the  said  child  is  not  attending 
any  school,  and  require  said  parent,  guardian  or  other  person  to 
cause  the  said  child  to  attend  some  recognized  school  within  five 
days  from  said  notice,  and  said  parent,  guardian  or  other  person 
having  the  legal  charge  and  control  of  said  child,  must  cause  the 
attendance  of  said  child  at  some  recognized  school.3 

14.  Proceedings  against  negligent  guardian.  Penalty.  Bond. — If 
said  parent,  guardian,  or  other  person  having  the  legal  charge  and 
control  of  said  child,  willfully  neglects,  fails,  or  refuses  to  cause 
said  child  to  attend  some  recognized  school,  said  officers  must  make, 
or  cause  to  be  made,  a  complaint  against  said  parent,  guardian  or 
other  person  ha\  ing  the  legal  charge  or  control  of  such  child,  in  any 
court  of  competent  jurisdiction  in  the  city,  special,  village  or  town- 
ship district  in  which  the  offense  occurred,  for  such  refusal,  failure 
or  neglect ;  and  upon  conviction  thereof  said  parent,  guardian  or 
other  person,  as  the  case  may  be,  shall  be  punished  by  a  fine  of  not 
less  than  five  dollars  nor  more   than  twenty  dollars,  or  the  court 

1  I  [4029,-6],  as  am.  87  O.  L.  325. 
5  I  [4029,-7],  as  am.  87  O.  L,  144. 
3  \  [4029,-7],  as  am.  87  O.  L,  325. 


CHAP.  14,  15.]  SCHOOL  LAWS.  2Q7d 

may,  in  its  discretion,  require  persons  so  convicted  to  give  bonds  in 
the  penal  sum  of  one  hundred  dollars,  with  one  or  more  sureties  to 
be  approved  by  said  court,  conditioned  that  said  persons  so  con- 
victed shall  cause  the  child  or  children  under  his  or  her  legal  charge 
or  control  to  attend  some  recognized  school  within  five  days  there- 
after, aud  to  remain  at  said  school  during  the  term  prescribed  by 
law.1 

15.  When  juvenile  may  be  sent  to  reformatory  in  dilution,  etc. — But 
if  said  parent,  guardian,  or  other  person  iu  charge  of  such  child 
proves  inability  to  cause  said  child  to  attend  said  recognized  school, 
then  said  parent,  guardian  or  other  person  must  be  discharged,  and 
said  court,  upon  complaint  of  said  truant  officer  or  other  person, 
that  said  child  is  a  juvenile  disorderly  person,  as  described  in  para- 
graph 10,  above,  must  proceed  to  hear  such  complaint;  and  if  said 
court  determines  that  said  child  is  a  juvenile  disorderly  person 
within  the  meaning  of  this  law,  such  child  must  be  deemed  guilty 
of  misdemeanor,  and  said  court  must  thereupon  sentence  said  child 
to  some  juvenile  reformatory.  But  no  child  or  children  over  ten 
years  old  can  be  sentenced  by  any  court  to  a  county  children's 
home ;  and  where,  in  the  judgment  of  the  trustees  of  any  such 
home,  it  shall  be  declared  by  resolution  at  a  regular  meeting  by 
them  held,  that  the  character  of  any  child  thus  sentenced  and  kept 
at  such  home  is  vicious  and  so  bad  as  to  be  detrimental  and  harm- 
ful to  the  habits  and  good  morals  of  other  children  at  such  home, 
said  trustees  are  authorized  and  empowered  to  remove  such  child  or 
children  to  the  boys'  industrial  school  at  Lancaster,  Ohio,  or  the 
girls'  industrial  home  at  Delaware,  Ohio,  as  the  case  may  be.  Such 
child  or  children  can  not  be  kept  at  any  such  home  beyoud  the  pe- 
riod prescribed  in  paragraph  4,  or  until  such  child  shall  arrive  at 
the  age  of  sixteen  years,  unless  sooner  discharged  by  the  board  of 
trustees  of  said  reformatory  or  home.  But  said  sentence  may  be 
suspended  in  the  discretion  of  the  court,  for  such  time  as  the  child 
shall  regularly  attend  school  and  properly  deport  himself  or  herself. 
If  for  any  cause  the  parent,  guardian  or  other  person  having  charge 
of  any  juvenile  disorderly  person,  as  defined  in  this  subdivision, 
fails  to  cause  such  juvenile  disorderly  person  to  attend  said  recog- 
nized school,  then  complaint  against  such  juvenile  disorderly  person 

1  \  [4029,-7],  as  am.,  87  O.  L.  325. 


207e  school  laws.  [chap.  14,  16-18. 

may  be  made,  heard  and  tried  and  determined  in  the  same  manner 
as  provided  for  in  ease  the  parent  pleads  inability  to  cause  said  ju- 
venile disorderly  person  to  attend  said  recognized  school.1 

16.  Further  proceedings  against  guardian. — Officers  empowered  or 
appointed  under  this  subdivision  to  assist  in  the  enforcement  thereof, 
must  institute,  or  cause  to  be  instituted,  proceedings  against  any 
parent,  guardian  or  other  person  having  legal  control  or  charge  of 
any  child,  or  corporation  violating  any  of  the  provisions  of  this  sub- 
division i.-' 

17.  When  this  law  not  operative. — This  law  is  not  operative  in  any 
school  district  where  there  are  not  sufficient  accommodation  to  seat 
children  compelled  to  attend  school  uuder  the  provisions  of  this  sub- 
division ;  nor  is  any  prosecution  to  be  instituted  against  any  parent, 
guardian  or  other  person  or  child  in  charge  of  such,  unless  they 
have  received  due  notification  from  any  officer  empowered  under 
this  subdivision  that  they  are  acting  in  violation  of  this  subdi- 
vision.2 

18.  When  may  be  suspended. — When  any  truant  officer  discovers 
to  his  full  satisfaction  any  child  under  the  age  of  fourteen  years, 
wholly  or  partially  dependent  upon  his  or  her  own  labor  for  a  liv- 
ing, or  who  is  the  support  of  others  unable  to  provide  for  their  own 
sustenance,  or  when,  in  the  judgment  of  the  superintendent  of  the 
schools,  or  of  the  board  of  education,  it  may  be  necessary  for  such 
child  to  contribute  to  the  support  of  the  family  of  which  he  or  she 
is  a  member,  said  truant  officer  must  report  such  case  to  the  proper 
authorities,  whose  duty  it  is  to  look  after  and  care  for  the  poor, 
and  to  endeavor  to  obtain  such  relief  as  may  release  such  child  from 
labor  for  such  length  of  time  each  year  as  will  be  required  for  com- 
pliance with  paragraph  4  of  this  chapter;  but  such  child  must  not 
be  declared  a  pauper  or  removed  to  any  infirmary,  reformatory  or 
children's  home,  unless  he  or  she  shall  willfully  neglect  to  take  ad- 
vantage of  the  provisions  made  by  said  truant  officer  for  his  or  her 
relief  and  instruction.  If  said  truant  officer  fails  to  obtain  such 
relief,  the  superintendent  of  the  schools,  or  the  board  of  education, 
may  make  suitable  arrangements  for  the  private  instruction  of  such 
child  while  so  adversely  conditioned.3 

1  I  [4029,-8],  as  am.  87  O..  L.  325. 

2  §  [4029.-9J. 

3 1  [4029,-10]. 


CHAP.  14,  19-21. J  SCHOOL  LAWS.  207/ 

19.  Duty  of  teachers  and  principals  under  this  law.  —All  principals 
and  teachers  of  all  schools,  public  and  private,  must  report  to  the 
cl,erk  of  the  board  of  education  of  the  city,  special,  village  or  town- 
ship districts,  in  which  schools  are  situated,  the  names,  ages  and 
residence  of  all  pupils  in  attendance  at  their  schools,  together  with 
such  other  facts  as  said  clerk  may  require,  in  order  to  facilitate  the 
carrving  out  of  the  provisions  of  this  subdivision,  and  the  clerk 
must  furnish  blanks  for  said  purpose,  and  said  reports  must  be  made 
in  the  last  week  of  September,  December,  February  and  April  of 
each  year;  and  it  shall  be  the  further  duty  of  said  principals  and 
teachers  to  report  to  the  truant  officer,  the  superintendent  of 
schools  or  the  clerk  of  the  board  of  education,  all  cases  of  truancy 
or  incorrigibility  in  their  respective  schools  as  soon  after  these 
offenses  shall  have  been  committed  as  practicable.1 

20.  When  corporations  violate  this  law. — When  any  of  the  pro- 
visions of  this  subdivision  are  violated  by  a  corporation,  proceed- 
ings may  be  had  against  any  of  its  officers  or  agents  of  said  cor- 
poration, who  in  any  way  participate  in,  or  are  cognizant  of  such 
violation  by  the  corporation  of  which  they  are  the  officers  or  the 
agents;  and  said  officers  or  the  agents  will  be  subject  to  the  same 
penalties  as  individuals  similarly  offending.2 

21.  Penalty  against  officers,  etc.—  Any  person  or  officer  mentioned 
in  this  subdivision,  and  designated  as  having  certain  duties  to  per- 
form in  the  enforcement  of  any  of  its  provisions,  neglecting  to 
perform  any  such  duties,  will  be  liable  to  a  fine  of  not  less  than 
twenty-five  dollars  nor  move  than  fifty  dollars  for  each  and  every 
offense;  and  mayors,  justices  of  the  peace,  and  probate  judges 
have  jurisdiction  to  try  the  offenses  described  in  this  subdivision, 
and  their  judgment  will  be  final.3 

1  §  [4029,-11],  as  am.,  87  O.  L.  32G.  2  g  [4029,-12].  # 

3  §  [4029-12],  as  am.,  87  O.  L.  327. 

The  last  section  of  the  statute  constituting  this  subdivision  is  as  follows: 
"Sec.  14.  Any  provision  of  statutes  in  force  when  this  act  takes  effect,  which 
conflicts  with  any  provisions  of  this  act,  shall,  to  the  extent  it  is  inconsist- 
ent with  the  latter,  and  not  otherwise,  be  held  to  be  superseded  by  this  act. 
The  provisions  of  this  act  shall  apply  to  children  entitled  under  existing 
statutes  to  attend  school  at  the  institutions  for  the  education  of  the  blind, 
and  the  deaf  and  dumb.  Other  provisions  of  statutes  in  force,  relating  to 
school  affairs,  shall  not  be  affected  by  this  act;  sections  4023,  4024  and  4028 
of  the  Revised  Statutes,  are  hereby  repealed." 


208  APPRENTICESHIP   OP   WARD.  |~CHAP.  15,  1-2. 

CHAPTER  15. 

APPRENTICESHIP  OF  WARD. 

1.  Wards  may  be  bound  out  up-      10.  Judgment  thereon,  and  its   ef- 
on    approval     by    the    probate  feet. 

court.  11.  Proceeding  when  apprentice  be- 

2.  As  to  other  provisions  on  same  comes  dissolute, 
subject.  12-  When  guardian  is  liable. 

3.  By  whom  indenture  to  be  exe-  13-15.  Form  of  indenture  to  bind 
cuted.  out  a  ward. 

4.  Must  state  minor's  age.  16.  Entry  of  approval  by  court. 

5.  What  covenant  indenture  must  17-18.  Form  of  journal  entry  of  the 
contain.  approval   of   the   court   of   the 

6-7.  To  be  recorded  when,  and  by  binding  out  of  a  minor  by  his 

whom;  effect  of  not  recording.  guardian. 

8.  Duties  of  guardians,  etc.,  as  to  19.  Form  of  judge's  certificate   of 
apprentices;    may  complain   to  approval  of  indenture, 
justice.  20-21.  Character,  etc.,  of  proposed 

9.  Jury  to  try  complaint.  •         master. 

1.  Wards  may  be  bound  out  upon  approval  by  the  probate  court. 
The  guardian  of  a  female  under  twelve  years  of  age,  or  a  male 
under  fourteen  years  of  age,  may,  if  it  be  necessary,  bind  such 
minor  to  any  suitable  person,  until  such  minor  shall  arrive  at 
the  age  of  twenty-one  if  a  male,  or  etghteen  if  a  female,  or  for 
a  shorter  period  ;  but  no  such  indenture  can  be  executed  unless 
the  probate  court  appointing  such  guardian  shall  first  approve 
such  binding,  and  the  terms  and  conditions  of  the  indentures, 
and  evidence  such  approval  by  a  certificate  under  the  seal  of  the 
court,  indorsed  upon  the  indentures.1 

2.  As  to  other  provisions  on  same  subject.  The  preceding  para- 
graph contains  all  the  law  as  to  the  ward's  apprenticeship  found 
in  that  chapter  of  the  Revised  Statutes  which  is  devoted  to 
guardians  and  trustees  ;  but  the  following  are  other  provisions 
relating  to  the  duties  of  guardians  and  others  as  to  such  appren- 
ticeships. 

^6293. 


CHAP.   15,  3-8.]  APPRENTICESHIP   OF   WARD.  209 

3.  By  whom  indenture  to  be  executed. — The  indenture  or  covenant 
of  service  must  be  signed  by  the  father;  or,  in  case  of  the  death 
or  inability  of  the  father,  by  the  mother  or  guardiau  ;  or,  in  case 
of  an  orphan  or  destitute  child,  by  the  trustees  of  the  township, 
of  the  one  part,  and  by  the  master  or  mistress  of  the  other  part.1 

1.  Must  state  minor's  age.  The  indenture  or  covenant  of  serv- 
ice must  contain  a  statement  of  the  age  and  time  of  service  of 
the  minor,  and,  if  such  age  is  unknown,  then  it  must  be  inserted 
according  to  the  best  information  ;  which  age  must,  in  relation 
to  the  term  of  service,  be  deemed  and  taken  as  the  true  age  of 
such  minor.2 

5.  What  covenant  indenture  must  contain.  The  indenture  or 
covenant  by  which  a  minor  is  bound,  must  contain  a  covenant, 
on  the  pai-t  of  the  master  or  mistress,  to  send  the  minor  to  a 
common  school  for  at  least  twelve  weeks,  in  each  school  year 
during  the  apprenticeship,  after  the  minor  is  eight  years  of  age, 
and  at  the  expiration  of  the  term  of  service,  to  furnish  the  minor 
with  a  new  Bible,  and  two  good  suits  of  clothes  ;  and  all  money 
or  property  stipulated  to  be  paid  by  the  master  or  mistress,  must 
be  secured  to,  and  for  the  sole  use  and  benefit  of  the  minor.8 

6.  To  be  recorded  when  and  by  whom;  effect  of  not  recording. 
The  master  or  mistress  must  cause  the  indenture  or  covenant  of 
service  to  be  recorded  within  three  months  from  the  execution 
thereof,  by  the  clerk  of  the  township,  or  clerk  of  the  municipal 
corporation  where  the  master  or  mistress  resides ;  and  on  failure 
so  to  do,  the  minor  will  be  discharged  from  service,  and  the  mas- 
ter or  mistress  remain  liable  for  the  payment  of  all  property 
stipulated  to  be  paid  by  the  covenants.4 

7.  In  such  case,  the  minor  would  no  doubt  be  again  as  com- 
pletely subject  to  the  control  of  the  guardian  as  though  the  arti- 
cles of  apprenticeship  had  never  been  entered  into. 

8.  Duties  of  guardians,  etc.,  as  to  apprentices ;  may  complain  to 
justice.  It  is  the  duty  of  parents  and  guardians,  and  the 
trustees  of  townships,  to  inquire  into  the  usage  of  a  minor  who 
is  bound,  and  to  defend  him  or  her  from  the  cruelty,  negleot,  or 
breach  of  covenant  of  the  master  or  mistress,  for  which  purpose 

1  I  3120,  as  am.  84  O.  L.  45.  2  \  3121. 

■  \  3122;  see  par.  3,  p.  206.  4  g  3123. 

14 


210  APPRENTICESHIP    OF    WARD.        [CHAP.  15,  9-11 

such  parent,  guardian,  or  trustees,  or  the  minor,  by  his  or  her 
next  friend,  may  complain  against  the  master  or  mistress,  before 
any  justice  of  the  peace  in  the  township  where  the  master  or 
mistress  resides;  and  such  justice  must  summon  the  master  or 
mistress  forthwith  to  appear  before  him,  and  if  lie  can  reconcile 
tin-  parties  to  each  other,  he  must  make  such  order  therein  as 
the  right  and  justice  of  the  case  requires.1 

0.  Jury  to  try  complaint.  If  the  justice  be  unable  to  settle  and 
accommodate  the  difference  in  dispute  between  the  parties,  he 
must  issue  a  venire  to  any  constable  of  the  township  to  summon 
five  disinterested  freeholders,  to  be  therein  named,  to  meet  at  a 
time  and  place  certain,  not  exceeding  three  days  thereafter ;  the 
jurors,  or  such  other  persons  as  the  justice  may  appoint  in  case 
of  their  failure  to  attend,  when  met  and  qualified,  must  proceed 
to  hear  the  evidence  in  the  case ;  and  if  they  find  the  master  or 
mistress  guilty  of  a  breach  of  the  indenture  or  covenant,  or  of 
neglect  or  refusal  to  furnish  necessary  food  or  clothing,  or  of 
cruelty  toward  the  minor,  they  must  render  their  verdict  in 
writing  accordingly,  and  assess  such  damages  as  the  minor  may 
have  sustained.2 

10.  Judgment  thereon,  and  its  effect.  The  justice  must  there- 
upon enter  the  verdict  in  his  docket,  and  must  render  judgment 
thereon  for  the  damages  so  found,  and  costs,  against  the  master 
or  mistress,  and  award  execution  accordingly;  and  the  inden- 
ture or  covenant  of  service  will  be  void  from  the  rendition  of 
judgment;  but  if  the  jury  find  the  defendant  not  guilty,  the 
justice  must  render  judgment  for  costs  against  the  parent,  guard- 
ian, next  friend,  or  trustees — if  the  complaint  of  the  trustees 
was  without  probable  cause— as  the  case  may  be,  and  issue  exe- 
cution accordingly.3 

11.  Proceeding  when  apprentice  becomes  dissolute.  If  the  con- 
duct and  habits  of  the  apprentice,  clerk,  or  servant,  become  im- 
moral and  dissolute,  in  disregard  of  the  commands  of  his  or  her 
master  or  mistress,  and  their  authority  be  exerted  for  his  or  her 
reformation  without  effect,  the  master  or  mistress  may  complain 
to  any  justice  of  the  peace  of  the  township,  who  must  give  no- 
tice to  the  parent,  guardian,  or  trustees,  and  such  proceedings 

i§3126.  2?3127.  8?3128. 


CHAP.  15,  12-15.]         APPRENTICESHIP   OP    WARD.  211 

must  be  bad,  as  to  summoning  and  impanneling  a  jury,  as  are 
provided  in  paragraph  8  of  this  chapter;  and  if,  upon  such  in- 
vestigation, the  jurors  are  of  opinion  that  the  master  or  mistress 
should  be  discharged  from  his  or  her  covenants,  they  must  cer- 
tify the  same  in  writing  to  the  justice,  who  must  enter  the  same 
upon  his  docket;  and  thereupon  the  indenture  will  be  void  ;  but 
no  judgment  for  costs  can  be  entered  against  the  parent,  guard- 
ian, or  trustees;  but  the  same  must  be  paid,  except  the  costs  of 
witnesses  for  the  minor,  by  the  master  or  mistress.3 

12.  When  guardian,  etc.,  is  liable. — No  parent,  guardian,  or 
trustee,  will  be  liable  upon  an}'  covenant  contained  in  an  inden- 
ture or  covenant  of  service,  unless  the  same  contain  an  express 
covenant  therein  that  the  said  parent,  guardian,  or  trustee,  is 
made  individually  liable.2 

13-15.  Form  of  indenture  to  bind  out  a  ward. 

Articles  of  agreement  made  this  — —  day  of ,  a.  d.  18 — , 

by  and  between  A.  B.,  as  guardian  of  C.  D.,  a  male  [or,  female] 

minor  of  the  age3  of years,  on  the day  of ,  A.  D. 

18 — ,  and  G-.  JEL.  witnesseth  ;  that  the  said  A.  B.,  as  guardian  as 
aforesaid,  hereby  binds  the  said  C.  D.  unto  the  said  Gr.  H.,  until 
the  said  C.  D.  shall  arrive  at  the  age  of  twenty-one  years  [or., 
eighteen  years,  as  the  case  may  be ;  or  if  for  any  shorter  period, 
name  either  the  number  of  years  that  is  agreed  upon,  or  the  age  up 
to  which  the  minor  is  agreed  to  be  bound~],  to  learn  the  art  of  a 
printer  [or  whatever  art  or  business  is  agreed  upon\  ;  and  the  said 
A.  B.,  as  guardian  as  aforesaid  [or  if  it  be  agreed  that  he  is  to  be 
individually  liable,  say,  instead  of  "  as  guardian  as  aforesaid,''  in- 
dividually4], hereby  covenants  and  agrees  with  said  G.  H.,  that 
the  said  C.  D.  shall  faithfully  serve  the  said  G.  H.,  and  work  un- 
der his  direction  at  the  employment  aforesaid,  during  the  term 
aforesaid,  and  conduct  himself  in  a  proper,  becoming,  and  re- 
spectful manner  towards  the  said  G.  H.,  and  obey  all  his  reason- 
able requests  and  demands. 

And  the  said  G  H.  hereby  covenants  and  agrees  with  the  said 
A.  B.,  as  guardian  as  aforesaid,  that  he  will  this  day  [or  if  another 
day  be  fixed,  when  the  minor  is  to  commence  the  service,  say,  on  the 

1  §3129.  2 §  3134.  3  See  paragraph  4.  *  See  paragraph  12. 


212  APPRENTICESHIP  OP  WARD.        [CHAP.  15,  16-18. 

day  of ,  a.  d.  18 — ]  receive  the  said  C.  D.  into  his  ser- 


vice for  the  term  and  for  the  purposes  aforesaid,  and  that  he  will 
faithfully  and  in  good  faith  teach  or  cause  him  to  be  taught  the 
art  and  mysteries  of  the  trade  of  printing  [or  such  other  business 
or  art  as  is  agreed  upon],  so  that  said  C.  D.  shall  be  as  thoroughly 
instructed  and  learned  therein  as  his  capacity  will  permit;  and 
will  send  the  minor  to  a  common  school  for  at  least  twelve  weeks 
in  each  school  year,  during  his  apprenticeship,  after  he  is  eight 
years  of  age  ;  and  at  the  expiration  of  said  term  of  service,  will 
furnish  said  C.  D.  with  a  new  bible,  and  at  least  two  good  suits 
of  clothes  [and  if  any  money  or  property  be  agreed  to  be  paid  to  the 

minor,  say,  and  will  pay  the  said  C.  D.  the  sum  of dollars, 

or,  will  give  the  said  C.  D.  a  good  saddle-horse,  saddle  and  bridle, 
or,  a  set  of  good  tools  of  said  trade,  etc.,  at  the  expiration  of  the 
term  aforesaid,  or  add  any  other  agreements  between  the  parties]. 

Iu  witness  whereof,  we  have  hereto  set  our  hands. 

A.  B., 

As  guardian  of  C.  D. 
G.  H. 

16.  Entry  of  approval  by  court. — As  has  been  seen,  terms  and 
conditions  of  the  indenture  must  be  approved  of  by  the  court 
which  appointed  the  guardian  ;  and  as  every  movement  of  the 
court  must  appear  on  its  journal,  this  approval  should  be  entered 
thereon. 

17-18.  Form  of  journal  entry  of  the  approval  of  the  court  of  the 
binding  out  of  a  minor  by  his  guardian. 

In  the  matter  of  the  guardianship  of  C.  D.,  in  binding  his 
ward  to  G-.  H. 

This  day  came  the  said  A.  B.,  guardian  of  C.  D.,  and  produced 
to  the  court  articles  of  indenture  duly  made  and  executed  on  the 

daj'  of ,  A.  d.  18 — ,  by  the  said  A.  B.,  as  guardian  as 

aforesaid,  and  the  said  G.  H.,  whereby  the  said  C.  D.  is  bound 
unto  the  said  G.  H.,  upon  the  terms  and  covenants  in  said  in- 
denture named,  and  the  court  being  satisfied  that  said  G.  H.  is  a 
proper  person  for  the  purposes  aforesaid,  and  that  the  terms  and 
covenants  of  said  indenture  are  legal,  proper,  and  just;  the 
binding,  terms,  and  conditions  aforesaid  are,  by  the  court,  here- 
by approved. 


CHAP.  15,  19-21.]        APPRENTICESHIP  OF  WARD.  213 

19.  Form  of  judge's  certificate  of  approval  of  indenture. 

The  State  of  Ohio, county,  ss. 

I,  A.  C,  probate  judge  of county,  Ohio,  hereby  certify, 

that  on  the  day  of ,  a.  d.  18 — ,  the  probate  court  of 

said  county  examined  the  within  indenture,  and  approve  the 
binding  and  the  terms  and  conditions  therein,  as  will  fully  ap- 
pear by  the  records  of  said  court. 

Witness  my  hand  and  the  seal  of  said  court,  this day  of 

,  a.  d.  18—. 

[l.  s.]  A.  C, 

Probate  Judge,  etc. 

20.  Character,  etc.,  of  proposed  master. — A  minor  may  be  bound 
to  serve  another  person,  of  full  age,  of  sound  morals,  and  of  ca- 
pacity to  teach  what  is  required,  and  to  govern  the  minor;  for 
none  other,  it  is  supposed,  would  be  approved  of  by  a  court 
which  did  its  duty. 

21.  The  person  to  whom  the  minor  is  bound  must  be  capable 
of  contracting ;  therefore,  such  minor  can  not  be  bound  to  an  in- 
fant, an  insane  or  imbecile  person. 


214 


CHARITABLE    INSTITUTIONS,  ETC.  [CHAP.  16,  1. 


CHAPTER   16. 

CHARITABLE,  REFORMATORY  AND   PUNITIVE  INSTITUTIONS, 
AS  AFFECTING   GUARDIANSHIP  OF   MINORS,  ETC. 


Par. 

BOYS  AND  REFORM  SCHOOL. 

1.  When  guardians,  etc.,  may  send 
ward  to. 

GIRLS,  AND   INDUSTRIAL   HOME. 

2.  Vicious  or  criminal  girl ;  duty  of 
judge  or  guardian  as  to. 

3.  May  be  sent  to  industrial  home. 

4.  Detention  and  discharge;  may 
be  returned. 

5.  May  be  bound  out;  who  her 
guardian  in  such  case. 

children's  homes. 

6.  Wards  in  children's  homes 
erected  by  counties  or  districts. 
Management,  etc.,  of  such 
homes. 

7.  Who  may  be  admitted  to 
home. 


Par. 

8.  Power  of  trustees  over  inmates. 

9.  Children    neglected  and  abused 
by  guardians,  etc. 

10-12.  Same  as  to  children's  home 
of  cities. 

13.  May  act  as  guardian  of  children 
and  procure  them  homes. 

14.  Children  may  be  apprenticed. 

15.  Trustees   may  remove  children 
from  unsuitable  homes. 

ix  houses  of  refuge. 
16-19.  When  infants  received  into. 

20.  Infants  entitled  to  private  ex- 
amination and  trial,  unless. 

21.  How  expenses  shall  be  paid. 

22.  Guardian    or    other  party   may 
apply  to  the  board. 

23.  Decision  of  application. 

24.  Action  against  directors. 

25.  Other  provisions. 


BOYS   AND   THE   INDUSTRIAL    SCHOOL. 

1.  WJien  guardian,  etc.,  may  send  ward  to. — Male  youth,  not  over 
sixteen  nor  under  ten  years  of  age,  may  be  committed  to  the  Boys' 
Industrial  School  by  any  judge  of  a  police  court,  judge  of  the 
court  of  common  pleas,  or  the  probate  court,  on  conviction  of  any 
offense  against  the  laws  of  the  state.1  The  law  formerly  provided 
that  this  would  be  done  on  complaint  by  the  parent,  guardian,  or 
next  friend,  if  shown  that  such  youth,  by  reason  of  his  incorrigi- 
ble or  criminal   conduct,  was   beyond  the   control  of  such  parent, 


1  g  7-33,  as  amended,  83  O.  L.  7. 


CHAP.    16,  2—i.]       CHARITABLE    INSTITUTIONS,   ETC.  2J  5 

guardian,  or  next  friend,  and  that,  from  regard  to  his  future  welfare 
and  the  protection  of  society,  he  should  be  placed  under  restraint.1 

GIRLS   AND   INDUSTRIAL   HOME. 

2.  Vicious  or  criminal  girl;  duty  of  judge  and  guardian. — When- 
ever a  resident  citizen  files  with  the  probate  judge  of  his  county  his 
affidavit,  charging  that  a  girl  more  than  nine  and  less  than  fifteen 
years  old,  who  resides  in  such  county,  has  committed  an  offense, 
punishable  by  fine  or  imprisonment,  other  than  imprisonment  for 
life,  or  that  she  is  leading  a  vicious  or  criminal  life,  such  judge 
must  fix  a  time,  not  more  than  five  days  from  the  time  such  affi- 
davit is  filed,  for  hearing  its  complaint;  and  he  must  forthwith 
issue  a  warrant  to  the  sheriff  of  such  county,  or  some  other  suitable 
person,  commanding  him  to  bring  such  girl  before  such  judge,  at 
the  time  so  fixed.  He  must  also,  at  the  same  time,  issue  an  order 
in  writing,  addressed  to  the  father  of  such  girl,  if  living  and  resi- 
dent of  such  county,  and  if  not  living  and  so  resident,  then  to  her 
mother  if  living  and  so  resident,  and  it  there  is  no  father  or  mother 
so  resident,  then  to  her  guardian  if  so  resident,  and  if  not,  then  to 
the  person  with  whom  the  girl  resides,  requiring  such  father, 
mother,  guardian,  or  other  person  to  appear  at  such  hearing.  Said 
judge  may  continue  such  proceeding  from  day  to  clay,  and  issue  all 
necessary  subpenas  for  witnesses.2 

3.  May  be  sent  to  industrial  home. — If  the  probate  judge,  after 
such  time  as  is  prescribed  by  law  in  such  cases,11  deems  the  accused 
to  be  a  proper  subject  for  the  industrial  home,  he  must  commit  her 
to  that  institution,  in  the  manner  provided  by  law.4 

4.  Detention  and  discharge  of;  may  be  returned. — A  girl  so  com- 
mitted must  be  kept  there,  disciplined,  instructed,  employed,  and 
governed,  under  the  direction  of  the  trustees,  until  she  is  either  re- 
formed and  discharged,  or  bound  out  by  them,  according  to  their 
by-laws,  or  is  eighteen  years  old;  but  the  trustees,  with  the  gov- 
ernor's approval,  after  a  full  statement  of  the  cause,  may  discharge 
and  return  to  the  parents,  guardian,  or  such  probate  judge,  who 
may  place  her  under  the  care  of  the  infirmary  directors  of  said 
county,  any  girl,  who,  in  their  judgment,  ought,  for  any  cause,  to 
be  removed  from  the  home.  In  such  case  the  trustees  must  record 
and  transmit  to  said  judge  the  reasons  for  her  discharge.  But  the 
superintendent  and  trustees  may  receive  back  into  the  home  any 
girl  under  twenty-one  years  of  age,  so  discharged,  when  her  best 
interests  demand  it.5 


1  ?  763.  2  I  7R9,  as  am.,  84  v.  77.  3  %  770,  771. 

4  I  770.  5g  773,  as  am.,  86  v.  180. 


21G  CHARITABLE    INSTITUTIONS,  ETC.       [CHAP.  1G,  5-8, 

5.  May  be  bound  out ;  who  her  guardian  in  such  case. — Any  girl 
so  committed  may  be  bound  out  as  apprentice  or  servant  for  a 
term  not  longer  than  till  sbe  arrives  at  the  age  of  eighteen  years, 
under  conditions  and  restrictions  imposed  by  the  statutes  ;  1  and 
the  trustees  of  the  industrial  home  will  be  her  guardians  while  so 
bound  out.  and  must  take  care  that  the  terms  of  the  contract  are 
faithfully  fulfilled,  and  that  she  is  properly  treated,  and  mnist 
cause  every  grievance  to  be  redressed.2 

WARDS  IN  CHILDREN'S   HOMES  ERECTED  BY  COUNTIES    OR  DISTRICTS. 

6.  Management,  etc.,  of  such  homes. — The  statutes  provide  for 
the  erection  and  maintenance  of  children's  homes,  under  the 
control  of  trustees,  superintendent,  etc.3  Among  the  further  pro- 
visions are  the  following: 

7.  Who  admitted.  The  home  is  to  be  an  asylum  for  all  children  un- 
der the  age  of  sixteen  years,  of  a  sound  mind,  and  free  from  all  in- 
fectious or  contagious  diseases,  and  having  resided  in  the  county  not 
less  than  one  year;  .and  such  other  children  under  such  age  from  other 
counties  in  the  State  where  there  is  no  home  located  as  the  trustees  of 
such  home  and  the  party,  parties,  or  authorities,  having  the  custody 
and  control  of  such  children,  by  contract,  agree  upon,  who,  by  reason 
of  abandonment  by  parents,  or  orphanage,  or  neglect,  or  inability  of 
parents  to  provide  for  them,  in  the  opinion  of  the  trustees,  are  suitable 
children  for  such  provision.  They  must  be  admitted  by  the  superin- 
tendent on  the  order  of  a  majority  of  the  trustees,  accompanied  by  a 
statement  of  facts  signed  by  them,  setting  forth  the  name,  age,  birth- 
place, and  present  condition  of  the  child  named  in  such  order.  This 
statement  of  facts  contained  in  the  order,  together  with  any  addi- 
tional facts  connected  with  the  history  and  condition  of  said  children, 
must  be  recorded  by  the  superintendent  in  a  book  provided  for  that 
purpose  by  the  commissioners  of  such  county  ;  and  this  book  must  be 
at  all  times  open  for  inspection,  at  the  discretion  of  the  trustees.4 

8.  Powers  of  trustees  over  inmates. — All  the  inmates  who  have  been 
so  neglected  or  abandoned,  or  who  have  been  voluntarily  surrendered 
to  the  trustees  by  the  parent  or  guardian,  will  be  under  the  sole 
and  exclusive  guardianship  and  control  of  the  trustees  during 
their  stay  in  said  home;  and,  until  they  arrive  at  the  age  of  six- 
teen years,  if  they  are  indentured  or  adopted  as  hereinafter  pro- 
vided, then  until  they  become  of  lawful  age.  The  trustees  may  re- 
move any  child  or  children  becoming  a  charge  upon  the  county,  who 

1  §?  775-7.  2  \  778;  see  chap.  15. 

3  \\  929-956.  4  I  931,  as  am.,  83  O.  L.  196. 


CHAP.   16,  9-12.]       CHARITABLE  INSTITUTIONS,  ETC.  217 

has  do  legal  settlement  therein,  to  the  county  to  which  it  or  they 
may  belong,  and  all  charges  and  expenses  so  made  must  be  paid  by 
the  county  to  which  it  or  they  belong.  Said  trustees  also  have  the 
power  to  discharge  any  of  the  inmates  of  said  home;  and  when  so 
discharged,  the  parents  or  guardians  must  assume  power  and  au- 
thority ;  and  the  trustees  may  return  any  of  the  inmates  of  said 
home  to  the  parents  or  guardians  of  such  inmates,  when  they  be- 
lieve them  capable  of  caring  and  providing  for  themselves,  or  their 
parents  or  guardians  for  them.1 

9.  Children  neglected  and  abused  by  parents  may  be  sent  to  home. — 
Children  who  are  under  the  custody  of  parent,  guardian,  or  next 
friend,  and  who,  by  reason  of  neglect,  abuse  or  from  the  moral  de- 
pravity, habitual  drunkenness,  incapacity  or  unwillingness  of  such 
legal  custodian  to  exercise  proper  care  or  discipline  over  them,  are 
being  brought  up  to  lead  idle,  vagrant,  or  criminal  lives,  may,  if 
the  trustees  of  the  township  in  which  they  have  a  legal  settlement, 
after  a  careful  and  impartial  investigation  of  the  condition  and 
facts,  as  they  exist,  deem  it  manifestly  requisite  for  the  future  wel- 
fare of  such  children,  and  for  the  benefit  and  protection  of  society, 
be  committed  to  the  guardianship  of  the  trustees  of  a  county  or 
district  children's  home.2  There  are  also  special  provisions,  some- 
what similar  to  those  in  paragraphs  6  to  15,  applicable  to  Cuyahoga, 
Meigs,  and  Muskingum  counties  only,  but  too  long  to  give  fully  here.3 

SAME,  AS   TO    CHILDREN'S    HOMES    OP    CITIES. 

10.  Powers  of  trustees  and  managers. — In  cities  of  the  first  and 
second  class,  where  children's  homes  or  industrial  schools  may 
be  established  under  the  incorporation  law  of  the  state,  the  trus- 
tees and  managers  of  such  institution  may  take  under  their 
guardianship  all  children  who  may  be  placed  under  their  care 
and  management  in  either  of  the  following  modes  : 

11.  First — Children  under  sixteen  years  of  age,  who  are  vol- 
untarily surrendered  by  the  father  and  mother,  or  in  case  of  the 
death,  or  long  continued  or  willful  absence  of  the  father,  by  the 
mother,  or  by  their  guardian,  to  the  care  of  such  trustees  and 
managers,  they  being  by  virtue  of  such  surrender  invested  with 
the  same  power  over  the  persons  of  the  children  as  the  parents 
or  guardians. 

12.  Second — Children  under  sixteen  years  of  age  who,  upon 

1  §  932,  as  am.,  83  O.  L.  196.     See  g  7866,  G.  R.  S.         2  §  945. 
3  \l  7813-29,  7843-09,  G.  R.  S. 
15 


218  CHARITABLE  INSTITUTIONS,  ETC.    [CHAP.  16,  13-17 

the  application  of  the  trustees  and  managers,  may  bo  committed 
to  their  care  by  any  judge  of  probate  court,  or  mayor  of  such 
city,  on  account  of  vagrancy  or  exposure  to  want  and  suffering, 
or  neglect  or  abandonment  bj*  their  parents  or  guardians,  or 
other  persons  having  custody  of  such  children,  or  in  accordance 
with  the  request  of  their  mother  or  next  friend  in  case  of 
habitual  intemperance,  abuse,  or  neglect  of  their  father.1 

13.  May  act  as  guar  Jim  of  children,  and  procure  them  homes. — 
The  trustees  and  managers  will  have  the  guardianship  of  such 
children  during  their  minority,  and  ma}*,  when  it  may  seem 
proper,  place  them  in  suitable  homes,  having  scrupulous  regard 
to  the  religious  and  moral  character  of  the  persons  with  whom 
such  children  are  placed,  in  order  to  secure  to  them  the  benefits 
of  good  example  and  wholesome  instruction,  and  the  opportunity 
of  becoming  intelligent  and  useful  men  and  women.2 

14.  Children  may  be  apprenticed. — The  law  then  further  pro- 
vides  that  such  children  may  be  bound  out,  and  on  what  condi- 
tions, etc.3 

15.  Trustees  may  remove  children  from  unsuitable  homes. — The 
trustees  and  managers  may  i-eraove  a  child  from  a  home  when, 
in  their  judgment,  the  same  has  become  an  unsuitable  one,  and 
they  must,  in  such  cases,  resume  the  same  power  and  authority 
as  they  originally  possessed  ;  but  they  may  return  a  child  to 
parents  or  a  surviving  parent  or  guardian,  or  when  they  believe 
the  child  to  be  capable  of  earing  and  providing  for  himself,  may 
discharge  him  to  his  own  care.4 

HOUSES   OF   REFUGE. 

16.  When  infant  received  into. — The  board  of  directors  of 
houses  of  refuge  of  municipal  corporations  may,  at  its  discretion, 
receive  into  such  institution  infants  under  the  age  of  sixteen 
years,  committed  to  their  custody  in  either  of  the  following 
modes,  to- wit  : 

17.  First Infants  committed  by  the  mayor  of  the  corp<> ra- 
tion, or  any  judge  or  justice  of  the -peace  of  the  county,  on  com- 
plaint and  due  proof  by  the  parent,  guardian,  or  next  friend  of 
such  infant,  that,  by  reason  of  incorrigible  or  vicious  conduct, 

'§2181;  78  0.  L.  154.  2?  2182  ;  78  0.  L.  154. 

8#  2183-4;  78  0.  L.  154.  4?  2185;  78  0.  L.  154. 


CHAP.  16,  18-21.]    CHARITABLE  INSTITUTIONS,  ETC.  219 

such  infant  has  rendered  his  control  beyond  the  power  of  such 
parent,  guardian,  or  next  friend,  and  made  it  manifestly  requisite 
that,  from  regard  to  the  future  welfare  of  such  infant,  and  for 
the  protection  of  society,  he  should  be  placed  under  the  guard- 
ianship of  the  board  of  directors  of  such  house  of  refuge  and 
correction.  • 

IS.  Second — Infants  committed  by  the  authorities  aforesaid, 
where  complaint  and  due  proof  have  been  made  that  such  infant 
is  a  proper  subject  for  the  guardianship  of  the  directors  of  such 
institution,  in  consequence  of  vagrancy,  or  of  incorrigible  or 
vicious  conduct,  and  that  from  the  moral  depravity  of  the  parent, 
guardian,  or  next  friend,  in  whose  custody  such  infant  may  be, 
or  other  cause,  such  parent,  guardian,  or  next  friend,  is  incapable 
or  unwilling  to  exercise  the  proper  care  and  discipline  over  such 
incorrigible  or  vicious  infant. 

19.  'Lliird — Infants  who  are  without  a  suitable  home  and  ade- 
quate means  of  obtaining  an  honest  living,  or  who  are  in  danger 
of  being  brought  up  to  lead  an  idle  or  immoral  life,  maybe  com- 
mitted to  the  guardianship  of  the  directors  of  such  institution, 
by  the  trustees  of  any  township  within  the  county  in  which  such 
institution  is  situated,  or  by  the  mother,  when  the  father  is  dead, 
or  has  abandoned  his  family,  or  does  not  provide  for  their  sup- 
port, or  is  an  habitual  drunkard.1 

20.  Infants  entitled  to  private  examination  and  trial,  unless. — In- 
fants under  the  age  of  sixteen  3*ears,  who  are  accused  of  an  of- 
fense punishable  by  imprisonment  in  a  county  in  which  a  house 
of  refuge  and  correction  is  situated,  will  be  entitled  to  a  private 
examination  and  trial,  to  which  only  the  parties  can  be  admit- 
ted, unless  one  of  the  parents,  the  guardian,  or  other  legal 
representative  demands  a  public  trial,  in  which  case  all  proceed- 
ings must  be  in  the  usual  form.2 

21.  How  expenses  shall  be  paid. — The  expense  of  maintaining 
infants  committed  to  a  house  of  refuge  and  correction,  by  a  court 
or  magistrate  of  the  county  in  which  such  institution  is  situated, 
or  by  the  police  or  other  court  of  the  corporation,  for  offenses 
against  a  law  of  the  state,  or  for  trial,  or  as  a  witness,  must  be 
paid  by  the  county;    and  the  expense  of   infants    committed    by 

1  #2050.  This  law  is  constitutional.  Father  not  entitled  to  custody  of  child, 
when.  37  U.  6.  197.  S'-<;  39  0. 6.  2<;s.  For  further  provisions  as  to  commit- 
ting children  to  bouse.-;  of  reiuge,  and  their  guardianship,  see{$  786G-7,  G.  U.S. 

*2  2tKJU. 


220  CHARITABLE  INSTITUTIONS,  ETC.    [CHAP.  16,  22-25. 

[township  trustees  must  be  paid  by  the  township,  and  of  those 
committed  by]  parents  and  guardians  must  bo  paid  by  them,  ex- 
cept in  cases  where  the  board  otherwise  determine;  all  which 
expense  must  be  ascertained  and  fixed  b}T  the  board.1 

22.  Guardian  or  other  party  may  apply  to  the  board. — If  a 
parent,  guardian,  master  to  whom  an  infant  lias  been  appren- 
ticed, a  person  occupying  the  position  of  parent,  protector,  or 
guardian,  in  fact,  or  a  relative  by  blood  or  marriage,  not  further 
remote  than  first  cousin  to  such  infant,  feels  aggrieved  by  the 
commitment  of  an  infant  to  the  directors  of  a  house  of  refuge 
and  correction,  by  a  person  authorized  to  commit  such  infant,  he 
may  make  a  written  application  to  the  board,  at  such  time  as 
the  directors,  by  rule  or  resolution,  provide  for  hearing  applica- 
tions, not  later  than  the  next  regular  meeting  of  the  board,  fo 
have  the  infant  delivered  to  him  ;  which  application  must  state 
the  ground  of  the  applicant's  claim  to  the  custody  of  such  infant, 
and  the  reason  for  claiming  such  custody.2 

23.  Decision  of  application. — Within  ten  days  after  hearing 
such  application,  the  directors  must  decide;  and  if  they  be  of 
opinion  that  the  welfare  of  such  infant  will  be  promoted  by  grant- 
ing the  application,  they  must  make  an  order  to  that  effect; 
otherwise  they  must  decline  the  app^cation.3 

24.  Action  against  directors. — The  applicant  may,  if  the  appli- 
cation be  declined,  upon  first  giving  security  for  the  payment  of 
costs,  commence  an  action  against  such  directors  in  the  court 
of  common  pleas  or  superior  court  of  the  county  in  which  the 
house  is  situated,  for  the  recovery  of  the  infant,  or  his  liberation  ; 
which  action  must  be  conducted  in  all  respects  as  actions  undei 
the  code  of  civil  procedure,  except,  the  case  will  have  precedence 
of  all  others  in  the  time  of  trial.4 

25.  Other  provisions. — There  are  many  other  provisions  as  to 
such  houses  of  refuge  and  infants  who  may  be  wards,5  for  instance, 
a  prescribed  simple  form  of  record  of  proceedings  for  commitment, 
unless  the  minor,  his  guardian  or  parent  object,0  terms  and  conditions 
of  binding  out  to  apprenticeship,  similar  to  those  already  specified,7 
etc.,  which  it  is  not  considered  necessary  to  give  here  in  full.8 

i  §  2071.     See  note,  p. -219.  i  §  2075.  3§2076.  *  §  2077. 

6 |g 2031-2107.  H  § 2060.  7  §§  2062-2066,  2087. 

8  See  also  §g  7796-7835  of  Giauque's  llevised  Statutes,  for  provisions  more 
or  le>»  kindred  to  the  foregoing. 


CHAP.  17,  1.]  INTOXICATING    LIQUORS.  221 


CHAPTER  17. 

INTOXICATING  LIQUORS. 


duties,  rjghts,  and  liabilities  of  cuardians  and  wards,  with  reference 
to  the  sale  of  intoxicating  liquors,  as  provided  in  chapter  7,  title 
v,  part  first,  revised  statutes. 

Par.  Par. 

1.  The    action    for   injury,    or    to  5.  Sellers  must  not  give  publicity 
means  of  support,   by   causing  to  notice. 

intoxication.  6.   Party  fined  not  entitled  to  ex- 

2.  Notice   to   seller,    or   owner   of  emptions. 

premises;  its  record  and  effect ;  7.  Liability  of  owner  of  premises 

penalty.  for  fines. 

3.  To  whom  damages  to  a  minor  8.  Guardian's  liability. 

must  be  paid.  9.   Criminal  provision  as  to  selling 

4.  Sale  works  forfeiture  of  lease.  such  liquor  to  minor. 


1.  The  action  for  injury  or  to  means  of  support,  by  causing  in- 
toxication.— Every  husband,  wife,  child,  parent,  guardian,  em- 
ployer, or  other  person  injured  in  person  or  property,  or  means 
of  support,  by  any  intoxicated  person  ;  or  in  consequence  of  the 
intoxication,  habitual  or  otherwise,  of  any  person,  after  the  giv- 
ing and  during  the  existence  of  the  notice  provided  for  in  the 
next  paragraph,  has  a  right  of  action  in  his  or  her  own  name,  sev- 
erally or  jointly,  against  any  person  or  persons  who,  by  selling 
or  giving  intoxicating  liquors,  have  caused  the  intoxication,  in 
whole  or  in  part,  of  such  person  ;  and  the  owner  of  any  build- 
ing or  premises,  and  the  person  renting  or  leasing  the  same, 
having  knowledge  that  intoxicating  liquors  are  to  be  sold  therein, 
in  violation  of  law,  or,  having  leased  the  same  for  other  pur- 
poses, knowingly  permit  intoxicating  liquors  to  be  sold  therein, 
that  have  caused  the  intoxication,  in  whole  or  in  part,  of  such 
person,  are  liable  severally  or  jointly  with  the  person  or  persons 


322  INTOXICATING    LIQUORS.  [CHAP.   17 

gelling  or  giving  intoxicating  liquors  as  aforesaid,  for  all  dam- 
ages sustained,  as  well  as  exemplary  damages.1     See  par.  8. 

1  §4:557.  Under  the  seventh  section  of  the  act  of  May  1,  1854,  (52  v. 
153),  contractors  who  had  in  their  employ  hired  hands  with  teams,  wagons, 
and  other  implements,  were  empowered  to  bring  suit  and  recover  damages 
against  any  person  who,  unlawfully,  sold  intoxicating  liquors  to  such  hands, 
whereby  they  became  drunk,  unable  themselves  to  work,  prevented  other 
hands  and  teams  from  working  to  advantage,  and  hindered  and  delayed  the 
progress  of  the  work,  and  thus  injured  the  contractors  in  their  property  and 
means  of  support.      Duroy  V.  Blinn,  11  0.  S.  331. 

Under  this  section  as  amended  April  18,  1870,  (67  v.  101)  a  justice  of  the 
peace  had  no  jurisdiction  against  the  owner  or  lessee  of  premises  where  the 
unlawful  selling  takes  place,  Bowers  v.  Pomeroy,  21  0.  S.  184;  injuries  to 
the  "  person  "  of  the  plaintiff  to  support  an  action  must  be  actual  violence, 
or  some  physical  injury  to  the  person  or  health  ;  injury  to  "  means  of  sup- 
port," does  not  imply  that  the  plaintiff  was  at  any  time,  in  whole  or  in  part, 
without  present  means  of  support;  it  is  sufficient  that  the  means  of  future 
support  have  been  cut  off  or  diminished  ;  and  the  rule  of  damages  is  the 
amount  of  diminution  ;  injury  to  "property"  maybe  the  sale  of  chattels, 
and  the  plaintiff  need  not  first  demand  them  of  the  vendee  ;  and  the  liabil- 
ity of  defendant  is  not  confined  to  cases  of  injury  resulting  from  drunken- 
ness, immediately  and  during  its  continuance,  but,  extends,  as  well,  to  cases 
where  the  injury  results  from  insanity,  sickness,  or  inability,  induced  by  in- 
toxication.    Mulford  v.  Clewell,  21  0.  S.  191. 

Before  the  amendment  of  1870,  where  the  action  was  from  injuries  result- 
ing from  habitual  intoxication,  it  was  not  essential  to  recovery  that  the  de- 
endant  should  have  been  the  sole  cause  of  such  habitual  intoxication  ;  one 
who  contributes  to  cause  that  condition  by  illegal  sales,  which  of  themselves 
tend,  and  are  calculated,  to  produce  that  result,  is  presumed  to  have  in- 
tended it,  and  is  liable  for  the  damages  resulting,  though  others  may,  by 
their  illegal  acts,  have  contributed  thereto  without  his  knowledge,  and  with- 
out preconcert  with  him;  and  where  the  damages  resulting  arise  from  inca- 
pacity for  business  and  loss  of  estate,  caused  by  such  intoxication,  and  it- 
becomes  impossible  to  separate  the  damages  caused  by  others  from  those 
caused  by  the  defendant,  be  is  liable  for  all  such  damages,  if  the  natural 
and  probable  consequences  of  his  illegal  acts  were  to  cause  such  injury; 
and  the  statement  of  the  vendee,  a  physician  who  was  in  the  habit  of  getting 
intoxicated,  made  when  purchasing,  that,  he  wanted  the  liquor  for  a  patient, 
and  for  medical  purposes,  does  not,  in  the  absence  of  proof  to  the  contrary, 
raise  a  presumption  that  it  was  a  sale  to  the  patient.     Boyd  v.  Watt,  27  O. 

S.  259. 

And  under  the  amendment  of  1870  separate  actions  might  be  brought 
against  different  defendants,  and  satisfaction  and  discharge  of  the  cause  of 
action  against  one  afforded  no  defense  in  the  other  case,  if  in  fact  the  intox- 


CHAP.   17,  2—4.]  INTOXICATING    LIQUORS.  223 

2.  Notice  to  seller  or  owner  of  premises ;  its  record  and  effect; 
penalty. — Such  husband,  wife,  child,  parent,  guardian,  or  other 
interested  person  liable  to  be  so  injured  by  any  sale  of  intoxi- 
cated liquors  to  any  person,  and  desiring  to  prevent  the  sale  of 
intoxicating  liquors  to  such  person,  must  give  notice,  either  ver- 
bally or  in  writing,  before  a  witness,  to  the  person  or  persons  so 
selling  or  giving  the  intoxicating  liquors,  or  to  the  owner  or 
lessor  of  the  premises  wherein  such  intoxicating  liquors  are 
given  or  sold,  or  file  with  the  township  or  corporation  clerk  in 
the  township  or  municipal  corporation  wherein  such  intoxicating 
liquors  may  be  sold,  notice  to  all  liquor  dealers  not  to  sell  to  such 
person  any  intoxicating  liquors  from  and  after  ten  days  from 
the  date  of  so  filing  such  notice.  Such  notice  so  filed  must  be 
entered  by  the  clerk  in  a  book  kept  for  the  purpose,  and  opened 
to  inspection  by  all  interested  persons.  Such  notice  ma}-  be  so 
erased  as  not  to  be  legible,  at  the  request  of  the  person  who  filed 
it;  but  while  it  stands  unerased,  it  inures  to  the  benefit  of  all 
persons  interested,  as  though  served  by  each.  By  refusing  to 
record  such  notice,  the  clerk  would  be  subject  to  fine  and  forfeit- 
ure of  office.! 

3.  To  whom  damages  to  minor  must  be  paid- — All  damages  re- 
covered by  a  minor,  under  this  chapter,  must  be  paid  either  to 
fiuch  minor  or  to  his  or  her  parent,  guardian,  or  next  friend,  as 
the  court  may  direct.2 

4.  Sale  icorks  forfeiture  of  lease. — The  unlawful  sale  or  divine 


ications  were  separate  and  distinct,  Miller  v.  Patterson,  31  O.  S.  419;  but 
the  sale  or  giving  away  of  liquor  must,  to  give  a  right  of  action,  be  unlawful, 
Baker  v.  Beckwith,  29  0.  S.  314;  but  it  is  not  necessary  that  the  sale  should 
be  in  violation  of  the  act  of  1854;  if  sold  in  violation  of  any  law  prohibit- 
ing the  sale,  or  if  furnished  in  violation  of  the  supplementary  act  of  April  5, 
1866  (63  v.  149),  the  right  of  action  accrues  under  the  amendment  of  1870; 
and  it  is  not  error  for  the  court  to  refuse  to  charge  that  if  the  jury  award 
exemplary  damages  they  should  not  consider  the  fact,  if  such  they  find  the 
fact  to  be,  that  certain  of  the  illegal  sales  were  made  on  Sunday.  Sibila  v. 
Bahney,  34  0.  S.  399. 

1  g  4358,  4359,  4360. 

2 1  4361.  See  2ti  O.  S.  372;  27  O.  S.  CG9 

A  married  woman  has  the  same  right  to  bring  suits,  and  control  them  and 
the  amount  recovered,  as  an  unmarried  woman,  under  this  chapter,  §  4361 


224  INTOXICATING    LIQUORS.  [CHAP.  6,  5-8 

away  of  intoxicating  liquors  works  a  forfeiture  of  all  rights  of 
the  lessee  or  tenant  under  any  lease  or  contract  of  rent  upon 
premises  where  such  unlawful  sale  or  giving  away  takes  place  ; 
and  all  suits  for  damages  under  this  chapter  must  be  by  a  civil 
action  in  any  court  having  jurisdiction  thereof.1 

5.  Sellers  must  not  give  publicity  to  notice. — Saloon-keepers, 
grocers,  or  others,  are  forbidden,  under  fine  of  ten  to  fifty  dollars, 
from  posting,  printing  in  an}-  newspaper,  orin  any  other  way  giv- 
ing publicity  that  the  notice  above  mentioned  has  been  given.1 

6.  Party  fined  not  entitled  to  exemptions. — For  all  fines,  costs, 
and  damages  assessed  against  any  person  in  consequence  of  the 
sale  of  intoxicating  liquors,  as  provided  in  the  foregoing  para- 
graphs, the  real  estate  and  personal  property  of  such  person,  of 
everj^  kind,  without  exception  or  exemption,  except  to  heads  of 
families  and  widows,  as  specified  in  section  5430  ;  and  such  fines, 
costs,  and  damages  will  be  a  lien  upon  such  real  estate  until 
paid.3 

7.  Liability  of  owner  of  premises  for  fines,  etc. — If  a  person  rent 
or  lease  to  another,  any  building  or  premises  to  be  used  or  oc- 
cupied, in  whole  or  in  part,  for  the  sale  of  intoxicating  liquors, 
or  permit  the  same  to  be  so  used  or  occupied,  in  whole  or  in  part, 
such  building  or  premises  so  leased,  used  or  occupied,  will  be 
held  liable  for,  and  may  be  sold  to  pay,  all  fines,  costs,  and  dam- 
ages assessed  against  any  person  occupying  the  same;  proceed- 
ings may  be  had  to  subject  the  same  to  the  payment  of  any  such 
fine  and  costs  assessed  or  judgment  recovered,  or  any  part 
thereof,  which  remain  unpaid,  either  before  or  after  execution 
issues  against  the  property  of  the  person  against  whom  such  fine 
and  costs  or  judgment  have  been  adjudged  or  assessed  ;  when 
execution  issues  against  the  property  so  leased  or  rented,  the 
officer  must  proceed  to  satisfy  the  same  out  of  the  building  or 
premises  so  leased  or  occupied.4 

8.  Guardian's  liability. — If  such  building  or  premises  belong 
to  a  minor,  insane  person,  or  idiot,  his  guardian  having  control 

J§4361.  2  HB62. 

3 1  4363.  The  words  "  shall  be  liable  for  the  payment  thereof,"  found  in 
the  old  law  (67  v  102  \  10).  were  evidently  omitted  by  mistake  03-  the  codi- 
fiers,  and  should  be  inserted  next  after  "  5430." 

'•  g  4304.     See  23  O.  S.  619;  25  O.  S.  352 ;  26  O.  S.  372. 


CHAP     17,  (J  J  INTOXICATING    LIQUORS.  225 

thereof,  will  be  liable  and  must  account  to  bis  ward  for  all  the 
damages  on  account  of  such  use  and  occupation,  and  the  liabili- 
ties for  the  fines,  costs,  and  damages  aforesaid  ;  and  all  contracts 
whereby  any  building  or  premises  are  rented  or  leased,  and  used 
or  occupied,  in  whole  or  in  part,  for  the  sale  of  intoxicating 
liquors,  will  be  void,  and  the  lessor  will,  on  and  after  such  sell- 
ing or  giving  intoxicating  liquors,  be  considered  and  held  to  be 
in  possession  of  such  building  or  premises.1 

9.  Criminal  provision  as  to  selling  such  liquor  to  minor. — Who- 
ever sells  intoxicating  liquors  to  a  minor,  except  upon  the  written 
order  of  his  parent,  guardian,  or  family  physician,  is  liable  to  a 
fine  of  not  more  than  one  hundred  nor  less  than  twenty-five 
dollars,  and  to  imprisonment  of  not  more  than  thirty  nor  less 
than  five  days.2 


1  \  4364. 

2  83  v.  161.  I  12;  ?  8903.  Giauque's  Revised  Statutes  of  Ohio. 


226  CONTRACTS  OP  WARD'S  ANCESTOR.      [CHAP.  18,  1-3. 


CHAPTER  18. 

REAL  CONTRACTS  OF  WARD'S  ANCESTOR. 

Par.  Par. 

1.  Action  to  complete  contract  for  4.  So  may  guardian  of  minor  heirs 

land.  or  devisees. 

2    When  court  may  order  convey-  5-12.  Form  of  petition  when  guar- 

ance  ;  deed  and  its  effect.  dian  desires  to  complete  a  pur- 

3.  Heirs  at  law  or  devisees  may  chase  for  minor  heir. 

compel  conveyance.  13.  Other  forms  in  such  cases. 

REAL   CONTRACTS   OP   WARD'S    ANCESTOR. 

1.  Action  to  complete  contract  for  land.  When  a  person,  who 
has  entered  into  a  written  contract  for  the  sale  and  conveyance 
of  an  interest  in  land,  dies  before  the  completion  thereof,  and  his 
executor,  administrator,  or  other  legal  representative,  desires  to 
complete  the  contract,  he  may  file  a  petition  therefor  in  the  court 
of  common  pleas  or  probate  court  of  the  county  in  which  the  land, 
or  any  part  thereof,  is  situate;  if  the  petition  be  filed  in  the 
probate  court,  service  may  be  made  therein  as  in  civil  actions  ; 
and  the  heirs  at  law,  devisees,  or  other  legal  representatives  of 
the  deceased  vendor,  when  not  plaintiffs,  must  be  made  defend- 
ants in  the  action.1 

2.  When  court  may  order  conveyance ;  deed,  and  its  effect.  The 
court,  after  causing  to  be  secured  to  and  for  the  benefit  of  the 
estate  of  the  deceased  its  just  part  and  proportion  of  the  con- 
sideration of  the  contract,  may  authorize  the  executor,  admin- 
istrator, or  other  legal  representative  to  complete  the  contract, 
and  to  execute  a  deed  for  and  on  behalf  of  the  heirs  at  law  to 
the  purchaser,  which  must  recite  the  order,  and  will  be  as  binding 
on  the  heirs  at  law,  and  all  other  persons  interested,  as  if  it  had 
been  made  by  the  deceased  in  his  lifetime.2 

3.  Heirs  at  law  or  devisees  may  compel  conveyance.  The  heirs 
at  law  or  devisees  of  a  person  who  purchased  an  interest  in  land 

^SOO.  2§5801. 


CHAP.  18,  4-12.]     CONTRACTS  OP  WARD'S  ANCESTOR.  227 

by  written  contract,  and  died  before  conveyance  thereof  to  him, 
may  compel  such  conveyance  as  the  deceased  might  have  done.1 
4.  So  may  guardian  of  minor  heirs  or  devisees.  The  provisions 
of  the  three  preceding  paragraphs  enable  the  guardian  of  any 
minor  heirs  of  any  person  who  had  entered  into  such  a  written 
contract  for  the  purchase  of  land  or  other  real  property,  to  com- 
pel the  conveyance  to  be  made,  in  the  same  manner  as  such 
person  might  have  done  if  living. 

5-12.   Form  of  petition  when  guardian  desires  to  complete  a  pur- 
chase for  minor  heir. 

county,  ss.,  Court  of  Common  Pleas  [or,  Probate  Court], 

A.  B.,  guardian  of  C.  D.,  plaintiff,  j  potion  to  complete  contract 

.  J5;.  {  for  sale  of  land. 

O.  P.,  defendant.  )  J 

Plaintiff  says  that  he  is  the  duly  appointed  guardian  of  said 

C.  D.,  a  minor  child  of  E.  D.,  deceased,  late  of county,  Ohio ; 

that  on  the day  of ,  a.  d.  18  — ,  the  said  E.  D.,  then  in 

full  life,  entered  into  a  contract,  in  writing,  with  said  O.  P.  for  the 
sale  of  the  following  described  real  estate,  situated  in  [here  de- 
scribe the  property,  as  should  be  in  a  deed']. 

Plaintiff  further  says,  that  said  sale  was  to  be  on  the  following 
terms  [state  the  terms'],  as  will  appear  by  said  contract  [or,  a  copy 
of  said  contract],  hereto  annexed. 

[Here  state  in  plain  language  all  other  pertinent  facts,  as  for  in- 
stance:] Plaintiff  further  says,  that  said  E.  D.,  during  his  life- 
time, paid  to  said  O.  P.  [here  state  what  he  paid,  and  when],  and 
that  plaintiff,  as  guardian  as  aforesaid,  is  ready  and  willing  to 
pay  the  balance  due  on  said  contract. 

Plaintiff  therefore  prays,  that  said  O.  P.  be  ordered  to  execute 
and  deliver  to  said  C.  D.  a  good  and  valid  deed  in  fee  simple  for 
Baid  land,  and  that  plaintiff,  as  guardian  as  aforesaid,  be  author- 
ized and  directed  to  pay  to  said  defendant  the  amount  still  due, 
as  above  stated,  at  the  time  of  the  delivery  of  said  deed  as 
aforesaid  ;  and  that  in  default  of  his  making  such  deed,  that  the 

1  \  5802.  The  order  of  the  probate  court  in  such  cases  may  be  appealed 
from.     See  paragraph  1,  chapter  24. 

As  to  the  effect  of  the  right  of  dower  in  such  cases,  see  Raff's  Guide, 
chapter  XII. 


22S  CONTRACTS  OP  WARD'S  ANCESTOR.     [CHAP.  18,  13-14 

decree  of  the  court  shall  operate  as  such  deed,  and  transfer  and 
convey  the  title  of  said  land  to  said  C.  D.,  as  fully  and  effectually 
as  such  deed  would  do.  A.  B.,  guardian. 

[or,  E.  H.,  att'y.  for  plaintiff] 

The  State  of  Ohio, county,  ss. 

A.  B.,  being  sworn,  says  that  ho  is  the  plaintiff  above  named, 
and  that  the  various  matters  set  forth  in  the  foregoing  petition 
are  true,  as  he  verily  believes.  A.  B. 

Sworn  to  [or,  affirmed]  before  me,  and  signed  in  my  presence, 

this day  of ,  a.  d.  18  — .  B.C., 

Notary  Publie, county,  0. 

13.  Other  forms  in  such  cases. — For  other  forms  easily  adapted 
to  the  matter  in  the  preceding  paragraphs  relating  to  real  con- 
tracts, see  paragraphs  43-59,  chapter  19. 


CHAP.  19.] 


LUNATICS,    IDIOTS,    ETC. 


229 


CHAPTER  19. 


GUARDIANSHIP  OF  LUNATICS,  IDIOTS  AND  IMBECILES. 


Par.  Par. 

1.  Probate  court  must  appoint.  24. 

2.  Will  be  guardian  of  ward's  mi- 
nor children.  25. 

3.  Who  is  an  imbecile. 

4.  When  wife   may   be  appointed       26. 
guardian. 

5.  Her  and  her  sureties'  liability.  27. 

6.  Laws   applicable  to  such  guar-      28. 
dians  ;  their  settlement. 

7.  Notice  of  motion  to  reopen  set-      29. 
tlement. 

8-9.  Form  of  motion  to  reopen  set-       30. 
ment. 

10.  Form  of  notice  of  such  motion.       31- 

11.  How  served. 

12.  Proof  of  service.  37. 

13.  Suits  by  guardian  of  idiot,  imbe-  38. 
cile,  or  lunatic,  and  revivor  of  39. 
same. 

14.  How  insane  person  must  sue.  40-' 

15.  How    insane   person   must  de- 
fend. 43- 

16.  Guardian  must  deny  what,  in  53- 
answer. 

17.  Duties     and    compensation    of 
guardian  ad  litem,  and  trustee.        55- 

18.  How  insanity  of  a  person  de-  58- 
termined. 

19.  Sale  of  real  estate  by  guardian  60. 
of  idiot,  imbecile,  or  lunatic.  61. 

20.  May  be  at  private  sale. 

21.  Petition,   and   hearing  thereof; 
order  of  court. 

22.  Additional  bond  of  guardian.  62. 

23.  Who  must  be  parties;  notice  to; 

expectancy  of  dower. 


Dower  of   insane  widow ;    how 
assigned,  or  sold  by  guardian. 
Guardian  should   make  written 
report. 

Leasing  and  improving  by  guar- 
dian. 

Rights  of  tenant. 
Long  lease  by  guardian  may  be 
authorized  by  court. 
Lease   for   three  years  without 
order  of  court. 

Application  for  authority  to 
make  long  lease. 

36.  Form  of  petition  for  long 
lease. 

Proceedings  on  the  application. 
Final  hearing  and  orders. 
Completion  of  real  estate  con- 
tracts. 

42.  The  law  relating  to  such 
contracts. 

52.  Form  of  petition. 

-54.  Journal  entry  ordering  guar- 
dian to  make  deed,  and  give  ad- 
ditional bond,  if  required. 

■57.  Form  of  additional  bond. 

59.  Deed  of  guardian  in  pre- 
ceding case. 
Insolvency  of  lunatic. 
Foreign  guardian  of  foreign 
idiot,  imbecile,  or  lunatic,  may 
dispose  of  property  belonging 
to  his  ward. 

Termination  of  guardianship; 
settlement. 


230  LUNATICS,    IDIOT-,    ETC.  [('HAP.   19,  1-5. 

63.  Petition  to  discharge  land  from  71.  Real  •.-tide  of  insane  and  other 

dower  of  insane  person.  paupers;  how  disposed  of. 

G4.  Inquest  of  lunacy.  72.  Certain  duties  of  assessors  as  to 

Qb.  Proceedings  on   report  of  such  guardians  of  insane,  etc. 

facts  to  court.  73.  How   boundaries   of  idiot's,  in- 

66-68.  Bow  dower  of  insane  person  sane    person's,   etc.,  land  fixed, 

mav  be  barred;  guardian's  duty,  by  written  instrument. 

etc  74-81.  Insane,   etc.,   ward's  real  es- 

69.  Apartments  lor  lunatics,  etc.,  in  tate  may  be  improved;  proceed- 
county  itifirmary.  ings,  etc.,  therefor. 

70.  Who  admitted,   and  how   pro- 
vided for. 

1.  Probate  court  must  appoint;  notice  as  to. — The  probate  court, 
upon  satisfactory  proof  that  any  person  resident  of  the  county,  or 
having  a  legal  settlement  in  any  township  thereof,  is  an  idiot,  im- 
becile, or  luuatic,  must  appoint  a  guardian  for  such  person.  But 
no  such  guardian  can  be  appointed  until  at  leasi  three  days'  notice 
to  the  pers  »ns  next  of  kin  resident  of  the  county  of  such  person  is 
given  to  attend  at  the  same  time  and  place.  This  notice  must  be 
served  by  delivering  to  each  person  named  therein  a  copy  thereof, 
or  by  leaving  such  copy  at  his  usual  place  of  resilience.1 

2."  Will  be  guardian  of  ward's  minor  children.— -Such  guardian  will, 
by  virtue  of  such  appointment,  be  the  guardian  of  the  minor  chil- 
dren of  his  ward,  unless  the  court  shall  appoint  some  other  person 
as  their  guardian.2 

3.  Who  is  an  imbecile  f— An  imbecile,  in  this  chapter,  means  a 
person  who,  not  born  idiotic,  has  become  so.2 

4.  Wlien  wife  may  be  guardian.— -When  any  person  having  a  wife 
shall  be  declared  to  be  an  idiot,  imbecile,  or  lunatic,  the  probate 
judge  may  appoint  the  wife  of  such  person  his  guardian,  if  it  be 
made  to  appear  to  the  satisfaction  of  the  judge  that  she  is  compe- 
tent to  discharge  the  duties  of  such  appointment.3 

5.  Her  and  her  sureties'  liability. — Any  married  woman  appointed 
such  guardian  will,  in  her  said  capacity,  have  power  to  enter  into 
official  bonds,  and  she  and  her  sureties  thereon  will  We  liable  in  the 
same  manner,  and  to  the  same  extent,  as  though  said  bond  was  exe- 
cuted by  an  unmarried  woman/ 

1  \  6302,  as  am.,  86  v.  61.  B.  was  appointed  guardian  of  ('.,  an  infant  of 
unsound  mind,  who  continued  so  after  coming  of  age.  13.  continued  to  act 
as  guardian  more  than  seven  years  after  C.'s  majority,  and  was  so  recognized 
by  court,  in  settling  his  accounts,  taking  and  approving  new  bond,  and  ac- 
cepting his  resignation  on  settling  his  final  account.  lb>ld,  that  appointment 
covered  guardianship  of  minor  "and  also  of  lunatic;  that  new  bond  taken 
after  C.'s  majority  was  good,  and  sureties  liable  thereon.  King  v.  Bell,  36 
O.  S.  460.     See  par.  22,  p.  25. 

Under  act  of  1824,  as  to  safe-keeping  of  idiots,  etc.,  see  Tp  v.  Co.,  10  O. 
283.  Such  appointment  ><  prima  facie  evidence  only  of  imbecility:  may  be 
attacked.  Messenger  v.  Bliss,  35  O.  S.  587.  Can  sign  improvement  assess- 
ment.     Laird  v.  Cin.,  5  Bull.  903;  9  Kec.  479. 

2  I  6302,  as  am.,  86  v.  61.  3  §  6303. 


CHAP.   19,  6    9.]  LUNATICS,  IDIOTS,  ETC.  231 

G.  Laws  applicable  to  such  guardians;  their  settlement. — All  lawa 
relating  to  guardians  for  minors-and  their  wards,  and  all  laws 
pointing  out  the  duties, rights,  and  liabilities  of  such  guardians  and 
their  sureties,  in  force  for  the  time  being,  are  applicable  to  guard- 
ians for  idiots,  imbeciles,  and  lunatics,  and  their  children,  except 
as  otherwise  specially  provided  ;  but  in  the  settlement  of  the  ac- 
counts of  such  guardians,  no  voucher  can  be  received  from  or 
-allowed  as  a  credit  to  the  guardian  of  any  idiot,  imbecile,  or 
lunatic,  which  is  signed  or  purports  to  be  signed  by  such  idiot, 
imbecile,  or  lunatic;  and  any  settlement  of  the  account  of  any 
such  guardian  heretofore  made,  in  which  any  such  receipt  shall 
have  been  allowed  as  credit  to  such  guardian,  will  be  held  and 
deemed  absolutely  null  and  void,  and  any  settlement  made  by 
any  such  guardian  must,  at  any  time  within  two  years  after 
the  appointment  of  another  guardian,  or  after  the  disability  of 
such  ward  may  be  removed,  or  such  ward  may  die,  be  opened 
up  and  reviewed,  on  the  motion  of  such  newty  appointed  guard- 
ian, or  legal  representative,  or  of  any  interested  person.1 

7.  Notice  of  .motion  to  reopen  .settlement. — Notice  of  such  mo- 
tion must  be  given  by  publication  or  otherwise  as  the  probate 
judge  may  direct.1 

8.  Form  of  motion  to  open  up  settlement. — Such  motion  may  be 
in  form  as  follows  : 

9.  Probate  Court  of county,  Ohio. 

In  the  matter  of  guardianship ")  Motion  to  re-open  settlement  of 
of  C.  D.  \      A.  B.,  late  guardian  of  C.  D. 

G.  H.,  guardian  [or,  other  interested  person'],  represents  that  said 
A.  B.,in  his  settlement  of  his  accounts  as  said  guardian,  received 
credit  on  a  certain  voucher  [briefly  describe  it],  which  voucher 
purports  to  have  been  signed  by  said  C.  D. 

Said  G.  fl.  therefore  moves  the  court  to  open  up  and  review 
said  settlement,  and  to  declare  the  same  null  and  void. 

G.  H.,  Guardian  [or,  otherwise,  as  may  be]. 

10.  Form  of  Notice  of  Such  Motion. 
To  A.  B.,  late  guardian  of  C.  D. 
You   are  hereby  notified  that  a  motion  has  been  filed  in  the 

1  ?•  6304.     For  details,  consult  index.   See  note*,  pp.  54,  204. 


232  LUNATICS,  IDIOTS,  ETC.  [CHAP.  19,  11-14. 

probate  court  of county  to  open  up  the  settlement  of  your 

accounts  as  said  guardian,  and  to  have  the  same  declared  null 
and  void,  because  of  the  credit  you  received  on  a  certain  voucher 
[briefly  describe  it],  purporting  to  have  been  signed  by  said  C.  D. ; 

and  that  said  motion  will  be  for  hearing  on  the day  of , 

18—,  at  —  o'clock  —  m.  G-.  H.,  Guardian  [etc.] 

11.  How  served. — This  notice  may  be  served  by  G.  H.,  by  the 
sheriff,  by  publication,  or  otherwise,  as  the  court  may  direct.  If 
served  by  publication,  the  third  person,  instead  of  the  second, 
may  be  used,  but  need  not  be,  as  follows :  "A.  B.,  late  guardian 
of  C.  D.,  is  hereby  notified  that "  [etc.,  giving  same  in  substance  as 
above]. 

12.  Proof  of  service.— Proof  of  service  of  notice  may  be  re- 
quired, as  in  paragraphs  44-45,  in  chapter  6. 

13.  Suits  by  guardian  of  idiot,  imbecile,  or  lunatic,  and  revivor 
of  same.— Such  guardian  may  sue  in  his  own  name,1  describing 
himself  as  guardian  of  the  ward  for  whom  he  sues,  and  when  his 
guardianship  ceases,  by  his  death,  removal,  or  otherwise,  or  by 
the  decease  of  his  ward,  any  suit,  action,  or  proceeding  then 
pending  will  not  abate,  if  the  right  survive,  but  his  successor  as 
guardian,  or  such  idiot,  imbecile,  or  lunatic,  if  he  be  restored  to 
his  reason,  or  the  executor  or  administrator  of  such  idiot,  imbe- 
cile, or  lunatic,  as  the  case  may  require,  must  be  made  party  to 
the  suit  or  other  proceeding,  in  like  manner  as  is  or  may  be  pro-  {, 
vided  by  law  for  making  an  executor  or  administrator  party  to 

a  suit  or  proceeding  of  a  like  kind,  where  the  plaintiff  dies  dur- 
ing its  pendency.2 

14.  How  insane  person  must  sue. — The  action  of  an  insane  per- 
son must  be  brought  by  his  guardian.3 


1  Must  sue  in  his  own  name.  Wageman  v.  Brown,  1  W.  L.  J.  (Clermont 
co.,  0.  S.  C.)454. 

2  §6305. 

Parties  who  are  united  in  interest  must  be  joined,  as  plaintiffs  or  defend- 
ants; but  if  the  consent  of  one  who  should  have  been  joined  as  plaintiff 
can  not  be  obtained,  or,  if  he  is  insane,  and  the  consent  of  his  guardian  can 
not  be  obtained,  or  he  has  no  guardian,  and  that  fact  is  stated  in  the  peti- 
tion, he  may  be  made  a  defendant.     §5007 

3H998. 


CHAP.  19,  15-19  ]  LUNATICS,  IDIOTS,  ETC. 


233 


15.  How  insane  person  must  defend. — The  defense  of  an  insane 
person  must  be  by  his  legally  appointed  guardian,  or,  if  there  is 
no  guardian,  or  the  guardian  has  an  adverse  interest,  by  a  trus- 
tee for  the  suit,  appointed  by  the  court;  and  if  the  insanity  of  a 
party  be  discovered,  or  he  become  insane,  after  the  action  is 
brought,  it  must  be  thereafter  prosecuted  or  defended  by  his  guar- 
dian, or  his  trustee  appointed,  as  provided  in  this  paragraph.1 

16.  Guardian  must  deny  what,  in  answer.— The  guardian  of  a 
person  of  unsound  mind  must  deny,  in  his  answer  filed  in  court, 
all  allegations  of  the  petition  prejudicial  to  such  defendant.2 

17.  Duties  and  compensation  of  guardian  ad  litem  and  trustee. — 
The  court  must  require  a  guardian  ad  litem,  or  a  trustee  ap- 
pointed under  paragraph  15,  above,  faithfully  to  discharge  his 
duty,  and,  upon  his  failure  so  to  do,  may  remove  him,  and  ap- 
point another  in  his  stead  ;  and  the  court  may  fix  a  compensa- 
tion for  his  services,  which  must  be  taxed  in  the  costs  against 
the  insane  person.3 

18.  How  insanity  of  a  party  determined. — When  the  insanity  of 
a  party  is  not  manifest  to  the  court,  and  the  fact  of  insanity  is 
disputed  by  a  party  or  an  attorney  in  the  action,  the  court  may 
try  the  question,  or  impanel  a  jury  to  try  the  same.4 

19.  Sale  of  real  estate  by  guardian  of  idiot,  imbecile,  or  lunatic. 
Whenever  the  sale  of  the  real  estate  of  such  ward  is  necessary 
for  his  support,  or  the  support  of  his  family,  or  the  payment  of 
his  debts,  or  such  sale  will  be  for  the  interest  of  such  ward,  or 
his  children,  the  guardian  may  sell  the  same  under  like  pro- 

1  § 5000. 

Prior  to  the  adoption  of  the  act  from  which  this  section  was  taken,  the 
court  could  appoint  a  guardian  ad  litem  to  defend  the  suit  for  a  lunatic  non- 
resident defendant,  brought  into  court  by  publication ;  and  no  decree  could 
be  taken  against  him  without  an  answer  from  his  guardian  ad  litem.  Sturges 
v.  Longworth,  1  O.  S.  545.     See  notes,  page  272,  and  31  O.  S.  247. 

2  §  5078. 

The  probate  court  has  no  power  to  set  a  guardian  over  the  person, 
property,  and  minor  children  of  a  man  upon  ex  parte  affidavits  that  he  is 
insane,  without  notice  to  him  of  the  proceeding  while  he  is  a  resident  of  the 
county,  and  in  no  way  concealed.  (Guernsey  Co.  0.  C.  P.,  1858).  Cox  v. 
Cox,  1  W.  L.  M.  96. 

3i)  5001.     See  par.  31,  chap.  23.  42  5002. 

16 


234  LUNATICS,  IDIOTS,  ETC.  [CHAP.   19,  20-24. 

ceedings1  as  are  or  ma}-  bo  required  by  law  to  authorize  the  sale 
of  real  estate  by  the  guardian  of  a  minor.2 

20.  May  be  at  private  sale. — If  it  be  more  for  the  interest  of 
such  idiot,  imbecile,  or  lunatic,  or  his  children,  the  probate  court, 
upon  the  petition  of  the  guardian,  may  authorize  him  to  sell  said 
real  estate  at  private  sale,  either  in  whole  or  in  parcels,  and  upon 
such  terms  of  payment  as  shall  be  prescribed  by  the  court.2 

21.  Petition  and  hearing  thereof — Order  of  court. — Said  petition 
must  contain  a  pertinent  description  of  the  real  estate  proposed 
to  be  sold,  a  statement  of  its  value  as  nearl}-  as  can  be  ascer- 
tained, and  the  facts  on  which  the  application  is  founded.  If, 
upon  hearing,  the  court  shall  be  satisfied  that  it  will  be  more 
for  the  interest  of  the  ward  that  said  real  estate  should  be  sold 
at  private  than  at  public  sale,  the  court  maj7  make  an  order  au- 
thorizing said  sale,  and  prescribing  the  terms  thereof.2 

22.  Additional  bond  of  guardian. — Before  making  such  sale,  the 
court  must  take  from  said  guardian  a  sufficient  bond  for  the 
faithful  performance  of  his  duty  in  the  premises,  and  for  ac- 
counting tor  the  proceeds  of  all  sales  made  under  said  order;  but 
the  guardian  can  not  be  authorized  to  sell  the  real  estate  at  pri- 
vate sale  lor  less  than  its  full  appraised  value.2 

23.  Wiw  mud  be  parties;  notice  to;  expectancy  of  dower. — If  the 
ward  have  a  husband  or  wife,  such  husband  or  wife  must  be  made 
a  defendant  to  the  petition:  and  if  he  or  she  file  an  answer3  con- 
senting to  the  sale,  free  and  discharged  of  all  right  and  expectancy 
of  dower  therein,  such  answer  will,  on  the  sale  being  confirmed,  be 
a  full  release  of  his  or  1km-  expectancy  of  dower,  and  unless  in  such 
answer  an  allowance  in  lieu  of  dower  be  waived,  the  court  must 
allow,  out  of  the  proceeds  of  the  sale,  such  sum  in  money '  as  is 
the  just  and  reasonable  value  of  his  or  her  expectancy  of  dower; 
and,  in  addition  to  the  husband  or  wife  of  such  ward,  all  persons 
entitled  to  the  next  estate  of  inheritance  in  such  real  estate  must  be 
made  defendants  to  the  petition,  and  notified  of  the  pendency  of 
such  proceedings  in  such  manner  as  the  court  may  direct.2 

24.  Dower  of  insane,  etc.,  widow;  how  assigned  or  sold  by  guar- 
dian—The guardian  of  an  idiot,  imbecile,  or  insane  widow,  who 
has  or  is  supposed  to  have  a  right  of  dower  iu  any  lands  or  ten- 

1  See  chapter  6.  The  forms  there  given  c>iu  he  readily  adapted  to  the  re- 
quirements of  the  eale  of  land-  under  this  chapter. 

2  ?  6306,  as  am.,  86  v.  106.  See  note  from  44  O.  S.,  on  page  174,  and  notes, 
p.  98. 

3  See  paragraphs  70-7:1  chapter  6. 

4  See  "Dower,  etc.,  Tables,"  pp.  2916-26  of  Giauque's  Rev.  Stat,  of  Ohio. 


CHAP.  19,  25-29.]  LUNATICS,  IDIOTS,  ETC.  235 

ements,  of  which  her  husband  was  seized  as  an  estate  of  inher- 
itance, or  in  any  land  held  by  bond,  article,  or  other  evidence  of 
claim,  where  the  dower  has  not  been  assigned,  has  power  to  sell, 
compromise,  or  adjust  the  same  upon  such  terms  as  he  may  deem 
for  the  interest  of  such  widow,  and  as  the  probate  court  of  the 
county  in  which  the  guardian  was  appointed  shall  approve;  and 
after  such  approval,  the  guardian  may  execute  and  deliver  all 
needful  deeds,  releases,  and  agreements  for  the  sale,  compromise, 
or  assignment  of  such  dower.1 

25.  Guardian  should  make  written  report. — The  guardian  should 
make  a  clear  report  in  writing  to  the  court  of  every  act  done  by 
virtue  of  the  power  given  in  the  preceding  paragraph,  and  get 
the  court's  approval  thereof.  What  these  acts  will  be  depend 
so  much  upon  the  circumstances  of  each  case  that  no  general 
forms  can  be  given  ;  but  somewhat  similar  forms  are  found  in 
chapter  6. 

26.  Leasing  and  improving  by  guardian. — Such  guardian  may 
also,  in  like  manner  as  the  guardian  of  a  minor,  and  on  like  pro- 
ceedings,2 be  authorized  to  lease  and  improve  the  real  estate  of 
his  ward  ;  and  if  the  lease  extend  beyond  the  time  of  the  restor- 
ation of  such  ward  to  sound  mind,  or  his  death,  such  lease  will 
determine  on  his  restoration  or  death,  unless  the  same  be  con- 
firmed by  such  ward  or  his  legal  representatives.3  (See  par.  28,  ch.  7.) 

27.  Rights  of  tenant.— If  such  lease  determine  by  reason  of  the 
restoration  of  the  ward  or  his  death,  the  tenant  will  have  a  lien 
on  the  premises  for  any  sum  or  sums  expended  by  bim  in  pur- 
suance of  the  lease  in  making  improvements,  and  for  which 
compensation  shall  not  have  been  made  either  by  the  rent  or 
otherwise.3 

28.  Long  lease  by  guardian  may  be  authorized  by  court. — Such 
guardian  may  also  be  authorized  by  the  probate  court  to  lease 
the  real  estate  of  his  ward  or  any  part  thereof  for  any  limited 
term  of  years  or  by  perpetual  lease,  with  or  without  the  privi- 
lege of  purchase,  whenever  the  court,  on  his  application,  shall 
find  that  the  same  is  necessary  for  the  support  of  his  ward,  or 
the  support  of  his  family,  or  that  such  leasing  will  be  for  the 
best  interests  of  him  or  them.4 

29.  Lease  for  three  years  without  order  of  court. — Such  guardian 

1  3  6307.  2See  chapter  7.  3  2  6308.  *  §  6309. 


236  LUNATICS.  IDIOTS,  ETC.  [CHAP.  19,  30-36. 

may  lease  the  real  estate  of  his  ward  for  any  term  not  exceeding 
three  years,  without  any  application  to  the  court.' 

30.  Application  for  authority  to  make  long  lease. — The  applica- 
tion for  authority  to  make  such  long  lease  or  leases  must  be  by 
petition,  setting  forth  the  character  of  the  idioc}',  imbecility,  or 
lunacy  of  the  ward  ;  whether  curable  or  incurable;  temporary 
or  confirmed,  and  its  duration  ;  the  number,  names,  ages,  and 
residence  of  the  family  of  the  ward,  including  the  wife  or  hus- 
band of  the  ward,  and  of  those  who  have  the  next  estate  of  in- 
heritance from  said  ward,  all  of  whom,  as  well  as  the  ward,  must 
be  made  defendants;  and  the  petition  must  also  contain  a  de- 
scription of  the  real  estate  ;  its  value,  and  the  amount  for  which 
it  can  probably  be  leased ;  the  reasons  for  the  proposed  lease, 
and  the  terms,  covenants,  conditions,  and  stipulations  on  which 
it  is  proposed  to  lease  the  same.2 

31-36.  Form  of  petition  for  long  lease. — The  following  form 
may  be  used,  of  course  changing  the  statements  to  conform  to 
the  facts  of  the  case : 

State  of  Ohio, County,  ss.     Probate  Court. 

A.  B.,  as  guardian  of  C.  D., 
plaintiff, 

vs.    "* 

Said  C.  D.,  H.  D.,  wife   of 

said  C.  J).,  and  M.  D.,  a  \  Petition  for  authority  to  lease  land. 
minor,  aged  15  years,  L. 
D.,  a  minor,  aged  11 
years,  and  J.  D.,  a  minor, 
aged  4  years,  children  of 
said  C.  D.,  defendants. 

Petitioner  represents  that  said  C.  D.  is  an  insane  person  whose 
insanity,  as  plaintiff  is  informed  by  said  C.  D.'s  physicians,  and 
as  he  verily  believes,  is  hereditaiy  and  violent,  incurable  and 
confirmed ;  that  said  C.  D.  has  been  insane  since  the  month  of 

,  18 —  ;  that  he  has  a  family  consisting  of  his  co-defendants 

above  named,  all  residing  on  the  farm  of  said  C.  D.,  in  said 
county,  said  farm  being  more  definitely  described  below ;  that 
the  three  defendants  last  above  named  are  the  only  children  of 

46309.  2§6310. 


OHAP.  16,  37.]  LUNATICS,  IDIOTS,  ETC.  237 

said  C.  D.,  and  are,  therefore,  together  with  said  H.  D.,  the  per- 
sons who  have  the  next  estate  of  inheritance  from  said  C.  D.  ; 
that  said  farm  contains  one  quarter  section  of  land,  described  as 
follows  :  [Here  describe  the  land  as  it  should  be  in  a  deed]  ;  that 
said  farm  is  probably  worth  sixteen  thousand  dollars  ;  that  it  can 
be  leased  for  eleven  hundred  dollars,  money  rent,  per  year,  if 
leased  for  a  term  of  five  years,  with  the  jmvilege  of  purchase  at 
the  expiration  of  lease,  at  the  price  of  $16,000.00  ;  that  if  not  so 
leased,  plaintiff  believes  it  can  not  be  leased  at  as  favorable  terms, 
if  at  all;  that  said  C.  D.  owns  said  farm  in  fee  simple,  unin- 
cumbered, and  personal  property  amounting  to  about  82,000.00 
in  value,  and  nothing  else;  that  said  defendants  are  all  depend- 
ent on  the  income  of  said  propert}',  and  they  can  not  work  said 
farm  themselves,  said  defendant  J.  D.  being  the  only  son,  and  too 
young  to  do  any  work  ;  that  it  is  proposed  to  lease  said  farm 
upon  the  following  terms,  covenants,  conditions,  and  stipulations, 
to-wit:  [Here  give  them;  or,  if  this  can  be  done,  say,  upon  the 
terms,  covenants,  conditions,  and  stipulations  set  forth  in  the  pro- 
posed lease  to  G.  L.,  a  true  copy  of  which  is  hereto  appended, 
and  made  a  part  hei'eof]. 

Plaintiff  therefore  prays  the  court  that  he  may  be  authorized 
to  lease  said  farm  on  the  terms,  etc.,  and  in  the  manner  designated 
above.  A.  B.  [or,  H.  M..,  attorney  for  plaintiff]. 

The  State  of  Ohio, county,  ss.  : 

A.  B.,  being  sworn,  says  that  he  is  the  plaintiff  in  the  foregoing 
petition,  and  that  the  various  matters  therein  stated  are  true,  as 
he  verily  believes.  A.  B. 

Sworn  to  before  me,  and  signed  in  my  presence,  this day 

of -,  18 — .  J.  H.,  Notary  public, county,  Ohio. 

37.  Proceedings  on  the  application. — On  filing  the  petition,  the 
same  proceedings1  must  be  had  as  on  petition  for  sale  of  the  real 
estate  of  a  minor,  except  that  the  appraisers  must  appraise  not 
only  the  value  of  the  real  estate,  but  also  the  value  of  its  annual 
rent  upon  the  terms,  covenants,  conditions,  and  stipulations  of 
the  lease  as  proposed  in  the  petition;  and  the  appraisers  must 
also  state  in  their  report  their  opinion  whether  the  proposed  lease 

1  See  chapter  6. 


238  LUNATICS,  IDIOTS,  ETC.  [CHAP.  19,  38-41. 

will  be  to  the  interest  of  the  ward  and  his  family  ;  and  they  may 
also  suggest  any  change  in  the  terms,  covenants,  conditions,  and 
stipulations  proposed  in  the  petition  ;  on  the  return  of  the  ap- 
pruiseinent,  the  guardian  will  not  be  required  to  give  an  addi- 
tional bond ;  but,  in  case  or"  sale  under  the  terms  of  the  lease,  he 
must  be  required  to  give  such  bond  before  the  confirmation  of 
the  sale.1 

38.  Fined  hearing  and  orders. — Upon  the  final  hearing,  if  the 
prayer  of  the  petition  be  granted,  the  court  nnvy  prescribe  the 
terms,  covenants,  conditions,  and  stipulations  of  the  lease,  either 
in  accordance  with  those  set  forth  in  the  petition  or  otherwise, 
and  authorizing  the  lease  to  be  made  by  public  or  private  letting, 
as  may  be  deemed  best;  but  in  no  case  can  the  leasing  be 
allowed  for  a  less  rent  than  that  named  in  the  report  of  the  ap- 
praisers, and  the  lease  can  not  take  effect  till  the  same,  with  the 
security  therein,  is  approved  and  confirmed.2 

39.  Completion  of  real  estate  contracts.  Additional  bond. — The 
guardian  of  an  idiot,  imbecile,  or  lunatic,  whether  appointed  by 
a  court  in  this  state  or  elsewhere,  may  complete  the  real  con- 
tracts of  his  ward,  or  any  authorized  contract  of  a  guardian  who 
has  died  or  been  removed,  in  like  manner  and  by  like  proceed- 
ings as  the  real  contract  of  a  decedent  may,  under  an  order  of 
court,  be  specifically  performed  by  his  executor  or  administra- 
tor ;  but  in  all  cases  when  the  guardian,  by  virtue  of  such  con- 
tract or  the  completion  thereof,  shall  receive  or  be  entitled  to 
receive  any  moneys  not  amply  covered  by  his  bond,  the  court 
must  require  of  him  an  additional  bond,  with  sureties,  in  respect 
of  such  moneys.3 

40.  The  law  relating  to  such  contracts. — The  provisions  of  the 
statutes  concerning  real  contracts  of  a  decedent,  mentioned  in 
the  preceding  paragraph,  are  given  in  the  next  two  paragraphs.* 

41.  When  a  person  who  has  entered  into  a  written  contract 
for  the  sale  and  conveyance  of  an  interest  in  land  dies  before  the 
completion  thereof,  and  his  executor,  administrator,  or  other 
legal  representative,  desires  to  complete  the  contract,  he  may  file 

l86311.  2§6312.  3§6313. 

4  As  these  two  sections  are  brief,  they  are  given  here  for  the  convenience 
of  having  all  the  law  and  the  forms  relating  to  this  matter  together,  though 
the  two  paragraphs  will  also  be  found  in  chapter  18. 


CHAP.  19,  42-52.]  LUNATICS,  IDIOTS,  ETC.  239 

a  petition  therefor  in  the  court  of  common  pleas  or  probate  court 
of  the  county  in  which  the  land,  or  any  part  thereof,  is  situated ; 
if  the  petition  be  filed  in  the  probate  court,  service  may  be  made 
therein  as  in  civil  actions;  and  the  heirs  at  law,  devisees,  or 
other  legal  representatives  of  the  deceased  vendor,  when  not 
plaintiffs,  must  be  made  defendants  in  the  action.1 

42.  The  court,  after  causing  to  be  secured  to  and  for  the  benefit 
of  the  estate  of  the  deceased,  its  just  part  and  proportion  of  the  . 
consideration  of  the  contract,  may  authorize  the  executor,  ad- 
ministrator, or  other  legal  representative,  to  complete  the  con- 
tract, and  to  execute  a  deed  for  and  on  behalf  of  the  heirs  at  law 
to  the  purchaser,  which  must  recite  the  order,  and  will  be  as 
binding  on  the  heirs  at  law,  and  all  other  persons  interested,  as 
if  it  had  been  made  by  the  deceased  in  his  lifetime.2 

43-52.  Form  of  petition  mentioned  in  paragraph  41,  above. 

State  of  Ohio, county,  ss.     Probate  court  [or,  court  of 

common  pleas]. 

A.  B.,  guardian  of  C.  D.,  an  insane  \ 

person,  plaintiff,  D  ....        ,  7  . 

1  '  J  I  Petition  to  complete  con- 

TOn-rrTB-T'rrt        ~  •        (      tract  for  sale  of  land. 
E.   G.,  H.  I.,  K.  JL.,  JU.  1).,  a  minor  \  J       .        J 

over  14  years  of  age,  defendants.      / 

Plaintiff  represents  that  on  the  —  day  of  —  a.  d.,  18 — ,  the 
said  C.  D.,  then  of  sound  mind,  and  under  no  legal  disability, 
entered  into  a  contract  in  writing  with  the  said  E.  G\,  for  the 
sale  of  the  following  described  real  estate,  situate  in  the  county 

of ,  and  State  of  Ohio,  to-wit :  [describe  the  property']  upon  the 

following  terms:  [state  the  terms']  as  will  appear  by  said  con- 
tract [or,  a  copy  of  said  contract]  hereto  attached,  [Here  set 
forth  in  plain  language  all  other  pertinent  facts,  as  for  instance:] 

That  said  E.  G.  paid  to  said  C.  D.,  while  yet  of  sound  mind, 
the  first,  second,  and  third  installments,  and  has  paid  to  said 
plaintiff,  since  the  insanity  of  said  C.  D.,  the  fourth  install- 
ment of  said  purchase-money.  And  plaintiff  says  that  said  E. 
G.  is  ready  and  willing  to  pay  the  balance  due  upon  said  con- 
tract, as  soon  as  a  valid  deed  can  be  made  to  him  for  said  prem- 
ises. 

1  i  5800.  2g  5801. 


240  LUNATICS,  IDIOTS,  ETC.  [CHAP.  1 9,  53-54. 

Plaintiff  further  represents  that  all  the  other  defendants 
named  are  heirs  at  law  of  said  C.  D.,  now  insane. 

Plaintiff  therefore  prays  that  said  heirs  at  law  may  be  made 
defendants  to  this  petition,  and  (hat  said  plaintiff  may  be  author- 
ized, upon  payment  of  the  residue  of  said  purchase  money,  to  ex- 
ecute and  deliver  to  said  E.  G..  in  behalf  of  the  aforesaid  C.  D., 
and  his  heirs  at  law,  a  deed  in  fee  simple  for  the  real  estate  here- 
inbefore deseribed.  A.  B.,  Guardian, 

[or,  If.  G.,  attorney  for  plaintiff. 
The  State  of  Ohio, county,  ss. 

A.  B.,  being  sworn,  says  [and  conclude  in  all  respects  as  in 
paragraph  12,  page  228]. 

53-54.  Journal  entry,  ordering  guardian  to  make  deed,  and  give 
bon<1,  ichen  required. 

A.  B.,  guardian  of  C.  D.,  ~) 

vs.  >    Petiton  to  complete  contract. 

E.  G-.  and  others.        ) 

[If  there  are  minor  defendants,  first  enter  the  appointment  of 
a  guardian  ad  litem.     See  par.  15,  chap.  23.] 

The  said  defendants  having  been  all  legally  notified  of  the  pend- 
ency of  said  petition,  this  cause  now  comes  on  for  hearing  upon 
said  petition,  the  answer  of  the  guardian  ad  litem,  and  the  testi- 
mony.    And  the  court  being  fully  advised  in  the  premises,  finds 

that  said  C.  D.,  on  the  da}-  of A.  D.,  18 — ,  being  then 

of  sound  mind  and  under  no  legal  disability,  entered  into  a  con- 
tract in  writing  with  E.  G.,  for  the  sale  of  the  premises,  in  the 
petition  described  ;  that  said  E.  G.  paid  the  first,  second,  and 
third  installments  of  the  purchase  money  to  said  C.  D.,  before 
his  insanity,  and  has  since  paid  to  the  petitioner  the  fourth  in- 
stallment of  the  same  :  and  the  said  E.  G.  is  ready  and  willing  to 
comply  with  so  much  of  said  contract  as  remains  unfulfilled  by 
him,  so  soon  as  a  valid  deed  for  said  premises  can  be  made  to  him. 
It  is  therefore  ordered,  that  upon  payment  of  the  residue  of  said 
purchase  money,  said  A.  B.,  guardian  for  and  on  behalf  of  the 
said  C.  D.  and  his  heirs  at  law,  execute  and  deliver  to  said  E.  G. 
a  deed  in  fee  simple  for  said  premises,  according  to  the  statute 
in  such  case  made  and  provided  [a<ld,  when  so,'],  and  that  said 


CHAP.   19,  55-59.]  LUNATICS,  IDIOTS,  ETC.  241 

guardian   give  an  additional  bond  in  the  sum  of  dollars  for 

the  payment  to  the  proper  persons  of  the  money  to  come  into 
his  hands  by  reason  of  the  completing  of  said  contract. 

55-57.  Form  of  additional   bond,  when    guardian  completes  real 
contract,  and  such  bond  is  required. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  as  principal, 
and  L.  E.  and  S.  T.  are  held  and  firmly  bound  unto  the  State  of 

Ohio,  in  the  sum  of  dollars,  for  the  payment  of  which  we 

hereby  jointly  and  sevei-ally  bind  ourselves,  our  heirs,  executors, 
and  administrators,  if  default  is  made  in  the  condition  following  : 

Whereas,  In  a  certain  cause  in  the court  of county, 

Ohio,  wherein  said  A.  B.,  as  guardian  of  C.  T>.,  is  plaintiff,  and  B. 
G.  is  defendant,  [or,  E.  G.  and  others  are  defendants,)  the  said 
A.  B.  has  been  ordered  by  said  court  to  complete  the  real  con- 
tract described  in  the  petition  in  said  cause. 

Now,  if  the  said  A.  B.  shall  account  for  and  pay  over  to  the 
persons  entitled  thereto,  all  the  money  that  shall  come  into  his 
hands  by  reason  of  the  completing  of  said  contract,  then  this  ob- 
ligation will  be  void;  otherwise  it  will  be  and  remain  in  full 
force  and  effect. 

Signed  and  sealed  by  us,  at ,  this  —  day  of a.  d.  18 — . 

Executed  in  presence  of  A.  B.     [seal.] 

L.  E.     [seal.] 
S.   T.     [seal.] 

58-59.  Deed  of  guardian  in  preceding  case. 

Know  all  men  by  these  presents,  that,  whereas,  on  the day 

of A.  D.  18 — ,  A.  B.,  guardian  of  C.  D.,  an  insane  person,  filed 

his  petition  in  the  probate  court  within  and  for  the  county  of 

and  State  of  Ohio,  against  E.  G.  and  others,  heirs  at  law  of 

said  C.  D.,  for  authority  to  make  a  deed  to  E.  G.,  on  behalf  of  the 
said  C.  £>.,  and  of  his  heirs  at  law,  for  the  following  described 
real  estate,  situate  in  said  county  of ,  and  State  of  Ohio,  to- 
wn: [describe  the  property, ,]  in  compliance  with  the  terms  of  a 

contract  in  writing  entered  into  on  the day  of ,  A.  D. 

18 — ,  between  the  said  C.  D.,  then  of  sound  mind,  and  said  E.  G. 
And,  whereas,  such  proceedings  were  had  that  the  said  A.  B.  was 
ordered  by  said  court  as  guardian  as  aforesaid,  and  for  and  on  be- 


242  LUNATICS,  IDIOTS,  ETC.  [CHAP.  10,  60-61. 

half  of  the  said  C.  D.  and  his  heirs,  to  execute  and  deliver  to  the 
said  E.  G.  a  deed  in  fee  simple  for  said  premises,  upon  payment 
of  the  purchase  money  remaining  unpaid,  which  order  is  in 
words  as  follows,  to-wit :  [here  copy  the  order  in  full,  inclosing  it  in 
quotation  marks],  all  of  which  will  more  fully  appear  by  the 
records  of  said  court,  to  which  reference  is  here  made:  and  the 
said  E.  G-.  having  paid  the  residue  of  said  purchase  money  ;  now, 
therefore,  I,  the  said  A.  B.,  guardian  of  said  C.  D.,  by  virtue  of 
the  powers  in  me  vested  b}'  law  and  the  order  of  said  court,  for 
and  on  behalf  of  the  said  C.  D.  and  his  heirs,  do  hereby  give, 
grant,  bargain,  sell,  and  convey  unto  the  said  E.  Gr.  the  prem- 
ises hereinbefore  described,  with  all  and  singular  the  appurte- 
nances, to  have  and  to  hold  the  same  unto  him,  the  said  E.  G-., 
and  unto  his  heirs  and  assigns  forever. 

Signed,  sealed,  and  acknowledged  A.  B., 

in  our  presence.  as  guardian  as  aforesaid. 

This  deed  must  be  acknowledged  just  as  shown  in  par.  100, 
of  chapter  6. 

60.  Insolvency  of  lunatic. — If  the  estate  of  the  idiot,  imbecile, 
or  lunatic,  is  insolvent,  or  will  probably  be  insolvent,  such  estate 
must  be  settled  by  the  guardian  in  like  manner,  and  like  pro- 
ceedings may  be  had  as  is  or  may  be  required  by  law  for  the 
settlement  of  the  insolvent  estate  of  a  deceased  person.1 

61.  Foreign  guardian  of  foreign  idiot,  imbecile,  or  lunatic  may 
dispose  of  property  belonging  to  his  ward. — The  foreign  guardian 
(conservator,  trustee,  or  other  person  having  power  similar  to 
those  of  guardians  in  this  State),  of  a  foreign  idiot,  imbecile,  or 
lunatic,  appointed  in  any  other  State  of  the  United  States,  or 
any  territory  thereof,  may  possess,  manage,  or  dispose  of  the  real 
and  personal  estate  of  his  ward,  situate  in  this  State,  in  like 
manner  and  with  like  authority  as  guardians  of  idiots,  imbeciles, 
or  lunatics  appointed  by  the  courts  of  this  State,  after  complying 
with  the  following  requirements:  First — An  authenticated  copy 
of  the  foreign  commission  of  idiocy  or  lunacy  proved,  allowed, 
and  recorded  in  the  probate  court  of  the  county,  or  one  of  the 
counties,  in  which  such  estate  is  situate,  in  like  manner  as  is  or 
may  be  provided  by  law  for  the  admission  to  record  of  an  au- 

1  \  6314.     See  Raff 's  Guide,  chapter  9. 


CHAP.  19,  62]  LUNATICS,  IDIOTS,  ETC.  243 

thenticated1  copy  of  a  will  made  in  any  other  of  the  United 
States.  Second — Evidence  satisfactory  to  the  court  here,  before 
which  such  foreign  commission  is  approved,  that  such  idiocy  or 
lunacy  still  continues.  Third — The  foreign  guardian,  conser- 
vator, trustee,  or  other  person,  having  powers  similar  to  those 
of  guardians  in  this  State,  must  file  his  bond,  with  sureties,  re- 
siding in  this  State  or  elsewhere,  to  the  acceptance  of  the  court, 
conditioned  for  the  faithful  administration  of  his  guardianship.*-1 
62.  Termination  of  guardianship ;  settlement. — Whenever  the 
probate  judge  shall  be  satisfied  that  an  idiot,  imbecile,  or  lunatic, 
or  a  person  as  to  whom  guardianship  has  been  granted  as  such, 
is  restored  to  reason,  or  that  letters  of  .guardianship  have  been 
improperly  issued,  he  must  make  an  entry  upon  the  journal  that 
said  guardianship  terminate;  and  the  guardianship  thereupon 
ceases,  and  the  accounts  of  the  guardian  must  be  settled  by  the 
court.3 

1  'Authenticated  copies  of  wills,  executed  and  proved  according  to  the 
laws  of  any  state  or  territory  of  the  United  States,  relative  to  any  property 
in  the  State  of  Ohio,  may  be  admitted  to  record  in  the  probate  court  of  any 
county  in  this  state,  where  any  part  of  such  property  may  be  situated ;  and 
s,uch  authenticated  copies,  so  recorded,  shall  have  the  same  validity  in  law 
as  wills  made  in  this  state,  in  conformity  with  the  laws  thereof,  are  declared 
to  have:  provided,  that  where  an}-  such  will,  or  authenticated  copy  has  been 
or  shall  hereafter  be  admitted  to  record,  in  the  probate  court  of  any  county 
in  this  state,  where  any  part  of  such  property  may  be  situated,  a  copj'  of 
such  recorded  will,  with  the  copy  of  the  order  to  record  the  same,  annexed 
thereto,  certified  by  the  probate  judge,  under  the  seal  of  his  court,  may  be 
filed  and  recorded  in  the  office  of  the  probate  judge  of  any  other  county  in 
this  state,  where  any  part  of  such  property  is  situated,  and  it  will  be  as  ef- 
fectual, in  all  cases,  as  the  authenticated  copy  of  said  will  would  be  if  proved 
and  admitted  to  record  by  the  court."     §5937. 

2  I  6315.  The  "  First "  and  "  Second  "  are  incomplete  sentences,  meaning 
what?     Copied  from  the  statutes. 

•  I  6316. 

An  appeal  will  lie  from  an  order  of  a  probate  court  overruling  a  motion 
of  an  imbecile  ward  t<>  terminate  the  guardianship  upon  the  grounds  (1)  that 
letters  of  Kuardianship  were  in  the  first  instance  improperly  issued,  and  (2) 
that  if  he  was  an  imbecile  at  the  time  such  letters  were  issued  he  has  since 
been  fully  restored  t>>  reason.     Hiett  v.  Nebergall,  4-j  O.  8.  7U2. 

"  No  more  precise  limit  can  be  assigned  to  the  authority  of  guardians  over 
insane  persons  and  spendthrifts,  than  that  of  the  ward's  necessities.  When 
he  becomes  restored  to  reason  or  is  otherwise  fit  to  control  his  own  person 
and  estate,  this  guardansbip  ceases;  for  Lne  purposes  of  the  tiust  are  felt  no 
longer.     But  a  period  su  difficult  to  fix  should  be  judicially  determined;  for 


244  LUNATICS,  IDIOTS,  ETC.  [CHAP.   19,  63-65 

63.  Petition  to  discharge  land  of  dower  of  insane  person. — A  person 
owning  real  property  i:i  this  state,  incumbered  by  the  contingent  or 
vested  right  of  dower  of  an  insane  person,  may  apply,  by  petition, 
to  the  common  pleas  court  of  the  county  in  which  the  real  estate, 
or  any  part  thereof,  is  situated,  making  defendants  thereto  such  in- 
sane person,  and  also  the  husband  or  wife  and  guardian,  if  such 
person  has  either  or  both,  for  leave  to  sell  all  or  any  part  thereof, 
discharged  and  unincumbered  of  such  contingent  or  vested  right 
of  dower.  This  petition  must  set  forth  the  insanity  of  the  person, 
together  with  a  description  of  the  land  proposed  to  be  sold ;  the 
court  must  thereupon  appoint  a  committee  of  six  competent  men, 
of  whom  at  least  three  are  physicians,  who  shall,  under  oath,  in- 
quire into  the  fact  of  the  insanity  of  such  person,  and  shall  hear 
testimony  to  be  produced  by  the  husband,  wife,  or  guardian,  or,  if 
there  is  no  such  guardian,  by  a  guardian  ad  litem,1  to  be  appointed 
by  the  court  in  the  action ;  and  the  committee  must,  at  any  term 
of  such  court,  make  a  report,  in  writing,  of  the  result  of  their  in- 
vestigation, signed  by  the  members  thereof.2 

64.  Inquest  of  lunacy. — If  the  committee  report  unanimously  that 
such  person  is,  in  their  opinion,  pernanently  insane,  the  court  must 
appoint  three  judicious  freeholders  to  appraise  the  real  estate  de- 
scribed in  the  petition,  whether  the  same  is  in  one  or  several  coun- 
ties, who  must  report  in  waiting  the  value  of  each  tract.3 

65.  Proceedings  on  report  of  such  facts  to  court. — Upon  the  filing 
of  such  report,  the  court  may  direct  such  petitioner  to  convey,  by 
good  and  sufficient  deed  of  conveyance,  to  the  insane  person,  to  be 
held  by  such  person  in  fee,  such  proportion  of  the  real  estate  de- 
scribed in  the  petition  as  shall  seem  just  and  proper  to  the  court, 
or  the  court  may  assign  to  such  insane  person,  to  be  held  by 
such  person  during  life,  after  the  death  of  the  husband  or  wife 
of  such  insane  person,  such  proportion  of  the  real  estate  de- 
scribed in  the  petition  as  shall  to  the  court  seem  just  and 
proper,  for  the  support  of  such  insane  person;  or  the  court 
may   order  the    petitioner  to    invest   an    amount,  to   be  fixed  by 

which  cause  a  formal  discharge  from  guardianship  is  to  be  sought  and  ob- 
tained; and,  meantime,  the  guardian's  authority  will  continue."  Schouler's 
Dom.  Rel.  424  (citing;  Dvce  Sombre's  case,  1  Phil.  Ch.  437;  Hovey  v.  Har- 
mon, 49  y\i-.  269;  Wendell's  case.  1  Johns.  Ch.  GUO;  Kimball  v.  Fiske,  39  N. 
U.  110;    Chase  v.  Hathaway.  14  Mass.  222). 

To  similar  effect,  3  Redf.  on  Will-.  458-9. 

1  See  chapter  23.  722,  as  am.,  80  v.  186. 

3  I  5723,  as  am.,  86  v.  186. 


CHAP.   19,  66-67.]  LUNATICS,  IDIOTS,  ETC.  245 

it,  ill  the  stock  of  a  company,  or  stocks  created  by  the  laws  of  this 
state,  as  may  be  designated  by  the  court,  the  profits  and  dividends 
arising  from  such  investment  to  be  applied  to  the  support  and  main- 
tenance of  such  insane  person  after  the  death  of  the  husband  or  wife 
of  such  insane  person  ;  and  the  petitioner  may,  upon  his  compliance 
with  the  order  of  the  court,  sell  all  the  real  property  the  petitioner 
is  possessed  of,  described  in  the  petition,  free  and  unincumbered  of 
the  contingent  or  vested  right  of  dower  of  such  insane  person.1 

66.  Dower  of  insane  may  be  barred. — When  the  husband  or  wife 
of  an  insane  person  conveys  any  real  estate  in  this  state,  in  which 
such  insane  person  has  a  contingent  or  vested  right  of  dower,  by 
virtue  of  such  ownership  of  the  husband  or  wife,  or  otherwise,  and 
the  insane  person  does  not  join  the  husband  or  wife  in  such  convey- 
ance, the  husband  or  wife  may  apply  by  petition  to  the  common 
pleas  court  of  the  county  in  which  the  insane  husband  or  wife  re- 
sides, or,  if  the  insane  husband  or  wife  resides  out  of  the  state,  then 
in  the  county  in  which  the  real  estate  is  situated,  for  leave  to  have 
any  part  or  all  of  such  real  estate  so  conveyed  released  of  the  dower 
right  therein.2 

67.  This  petition  must  set  forth  the  insanity  of  the  husband  or 
wife,  and  a  description  of  the  land  proposed  to  be  affected ;  to 
which  petition  the  insane  person,  the  guardian,  if  there  is  one,  and 
all  persons  in  interest,  must  be  made  defendants,  and  the  petition 
must  be  proceeded  in,  in  all  respects,  in  the  manner  prescribed  in 
the  three  preceding  paragraphs,  except  that  instead  of  ordering  the 
petitioner  to  sell  the  real  estate,  or  to  convey  or  assign  to  such  in- 
sane person  any  part  thereof,  the  court  must  direct  the  petitioner  to 
make  such  investment  as  is  provided  in  the  preceding  paragraphs, 

1  §  5724,  as  am.,  86  v.  18(5.  As  to  contingent,  etc.,  dower,  see  pp.  2916-26, 
Giauqup's  Rev.  Stat,  of  Ohio. 

2  §5725,  as  am..  86  v.  187. 

§  5725a,  passed  April  24,  1890  (87  O.  L.  281),  provides  that  any  real  estate 
or  interest  therein,  coming  to  any  person  by  purchase  after  the  husband  or 
wife  of  such  person  is  adjudged  insane,  and  is  an  actual  inmate  of  any  asy- 
lum f.ir  the  insane  provided  by  the  state,  may  be  conveyed  by  such  person, 
at  any  time  while  such  insane  husband  or  wife  remains  an  inmate  of  any 
such  asylum,  free  and  clear,  from  any  dower,  right  or  expectancy  of  such  in- 
sane person,  and  dower  shall  not  attach  to  any  such  real  estate  both  so  ac- 
quired and  conveyed  during  said  time  as  aforesaid  in  favor  of  such  insane 
person,  and  the  indorsement  upon  the  instrument  of  conveyance,  by  the  su- 
perintendent of  any  such  asylum  that  such  husband  or  wife  is  an  insane  in- 
mate of  such  asylum,  stating  when  received  therein,  signed  officially  by  him, 
shall  be  sufficient  evidence  of  the  fact  that  such  husband  or  wife  is  such  in- 
sane inmate  and  such  indorsement  shall  be  a  part  of  such  instrument  of 
conveyance. 


246  LUNATICS,  IDIOTS,   ETC.  [CHAP.    l'J,  68-71. 

or  may  require  the  petitioner  to  secure  the  amount  to  the  use  of  the 
insane  person  by  mortgage  of  unincumbered  real  estate  of  at  least 
double  the  value  thereof.1 

68.  Upon  compliance  by  the  petitioner  with  the  order  of  the 
court,  the  court  must  enter  a  judgment  releasing  and  discharging 
the  real  estate  from  the  incumbrance  of  such  contingent  or  vested 
right  of  dower,  and  must  adjudge  the  holder  of  the  legal  title,  or 
other  party  liable,  to  pay  to  the  petitioner  any  sum  withheld  or  re- 
tained as  indemnity  against  such  dower  right.1 

69.  Apartments  for  lunatic*,  etc.,  in  county  infirmary. — The  com- 
missioners of  every  county  in  which  there  rinw  is,  or  may  hereafter 
be,  established  a  county  infirmary,  must  provide  separate  apart- 
ments, in  or  adjoining  such  infirmary,  for  the  safe  keeping  and 
treatment  of  lunatics,  idiots  and  epileptics,  residents  in  such  county, 
and  who  have  not  been  and  can  not  be  received  iuto  either  of  the 
lunatic  asylums,  or  who  have  been  discharged  therefrom.2 

70.  Who  admitted,  and  how  provided  for. — The  directors  of  the 
county  infirmary,  as  soon  as  apartments  are  provided,  as  mentioned 
above,  must  admit  therein  all  lunatics,  idiots,  and  epileptics  who 
are  or  may  become  a  charge  upon  their  county,  and  provide  for  their 
safe  keeping, support  and  treatment,  in  such  manner  as  they  now  do 
for  the  poor  under  their  care,  and  also  must  receive  and  provide  for 
the  safe-keeping,  support,  and  treatment  of  such  lunatics,  idiots,  and 
epileptics  in  their  county,  who,  by  their  guardians  or  friends,  may 
apply  for  admission,  as  pay  patients,  under  such  rules  and  regula- 
ti  >ns  as  the  directors  prescribe.3 

71.  Real  estate  of  inmne  and  other  paupers;  how  disposed  of. — 
When  a  person  is  admitted  into  the  infirmary  as  a  pauper,  whether 
insane  or  otherwise,  and  such  person  is  possessed  of,  or  is  the  owner 
of  real  estate,  or  has  an  interest  in  reversion,  or  is  in  any  manner 
legally  entitled  to  any  gift,  legacy,  or  bequest  in  real  estate,  the 
directors  must  take  possession  of  all  such  property  or  other  interest 
such  pauper  is  entitled  to,  and  when  they  deem  advisable  and  to 
the  best  interest  of  such  pauper,  must  proceed  to  sell  the  same; 
and  they  must  file  a  petition  for  that  purpose  in  the  court  of  com- 
mon pleas,  or  probate  court,  in  the  county  where  such  property  is 
situated  ;  and  the  proceedings  therefor,  sale,  confirmation  of  sale 
and  execution  of  deed  by  said  directors,  must  be   conducted,  in   all 

'  See  note  2,  p.  lit:..  »  g  970,  as  am.,  83  O.  L.  196. 

s  I  971,  as  am.,  83  O.  L.  196. 


CHAP.   19,  72-75.]  LUNATICS,  IDIOTS,  ETC.  247 

respects,  in  conformity  to  the  practice  and  statutory  provisions  for 
the  sale  of  real  estate  by  guardians ; '  and  the  net  proceeds  arising 
from  such  sale  must  be  applied,  under  the  special  direction  of  the 
directors,  in  such  manner  as  they  think  best,  to  the  maintenance  of 
such  person  during  his  continuance  as  a  pauper  in  the  infirmary; 
but  if  the  guardian,  husband,  wife,  heirs,  or  persons  who  are  en- 
titled to  the  residuary  interest  in  the  property  of  said  pauper,  give 
bond  to  the  directors  of  the  infirmary,  to  their  satisfaction,  and  pay 
into  the  hands  of  the  clerk  of  the  board  of  directors,  at  such  times 
as  the  directors  require,  an  amount  sufficient  to  support  said  pauper 
while  he  remains  in  the  infirmary,  the  directors  can  not  take 
charge  of  said  property.2 

72.  Certain  duties  of  assessors  as  to  guardians  of  insane,  etc. — Each 
assessor,  at  the  time  of  taking  a  list  of  property  for  taxation  in 
the  year  1882,  and  every  fourth  year  thereafter,  must  take  an 
enumeration  of  all  deaf  and  dumb,  blind,  insane,  and  idiotic  per- 
sons, whose  usual  place  of  residence  is  in  any  family,  jail,  or  in- 
firmary in  his  township  or  precinct,  on  the  day  preceding  the  second 
Monday  of  April,  together  with  their  names  in  full,  their  age,  and 
the  duration  of  their  muteness,  blindness,  insanity,  or  idiocy  ;  and 
he  must  make  out  a  list  of  said  deaf  and  dumb,  blind,  insane,  and 
idiotic  persons,  designating  those  of  each  class,  and  the  names  of 
their  parents  or  guardians,  and  post-office  address;  and  he  must 
return  the  same  to  the  county  auditor  on  or  before  the  third 
Monday  of  May  in  the  same  year.3 

73.  How  boundary  of  land  of  idiot  or  insane  person  may  be  fixed  by 
written  instrument. — See  paragraphs  3,  4,  chapter  25. 

74.  Ward's  real  estate  may  be  improved. — The  guardian  of  an  im- 
becile or  insane  person  may  use  the  moneys  and  personal  estate 
of  his  ward  in   improving  the  real  estate  of  said  ward  as  follows:4 

75.  Petition  therefor;  parties,  and  notice  to. — The  guardian  pro- 
posing to  make  such  improvement,  must  file  in  the  probate  court 
in  which  he  was  appointed  such  guardian,  a  petition  describing  the 
premises  to  lie  improved,  the  amount  of  rent  said  premises  yield 
at  the  time  of  filing  such  petition,  in  what  way  it  is  proposed  to 
make  such  improvement ;  how  much  it  is  proposed  to  expend  in 
making  same,  and  what  rent  said  premises  will  probably  yield 
when  so  improved,  together  with  a  statement  of  the  value  of  said 
ward's  personal  estate,  and  such  other  facts  as  may  be  pertinent 
to  the  question  whether  said  improvement  should  be  made,  and  a 
prayer  that  he  be  authorized  to  use  so  much  of  said  ward's  moneys 
and  personal  estate  as  may  be  necessary  to  make  such  improve- 
ment; and,  if  the  property  to  be  improved  is  so  situated  that  it 
can  advantageously,  and  to  the  best  interest  of  the  estate  of  said 

1  See  chap.  6.  2  £  972.  3  g  1526. 

*  g  [6316,-1],  Giauque's  Rev.  Stat.;  86  v.  31,  \  1. 


248  LUNATICS,  IDIOTS,  etc.        [chap.  19,  76-81. 

ward,  be  improved  in  connection  with  the  improvement  of  prop- 
erty, adjoining  and  adjacenl  to  said  premises  of  said  ward,  said 
petition  must  contain  a  statement  showing  the  same,  and  a  prayer 

in  accordance  therewith.  Said  petition  must  also  contain  a  state- 
ment of  the  character  of  the  imbecility  or  the  insanity  of  said 
ward — whether  temporary  or  confirmed— and  its  duration;  the 
names,  aires,  and  residence  of  the  family  of  the  said  ward,  in- 
cluding the  wife  or  husband  of  said  ward,  and  of  those  who  have 
the  next  estate  of  inheritance  from  said  ward,  all  of  whom,  as  well 
as  said  ward,  must  be  made  defendants,  and  be  notified  of  the 
pendency  and  prayer  of  said  petition  in  such  way  as  said  court 
shall  direct.1 

76.  Proceedings  and  form*. — Upon  the  filing  of  said  petition,  the 
same  proceedings  must  he  had  as  to  pleadings  and  proof  as  are  had 
on  petition  by  a  guardian  to  sell  the  real  estate  of  a  minor.2  The 
forms  in  chapter  6  can  readily  be  adapted  for  these  proceedings. 

77.  Commissioners  appointed. — The  court  must  appoint  three  disin- 
terested and  judicious  freeholders  of  the  county  as  commissioners, 
whose  duty  it  shall  be  to  examine  the  premises  proposed  to  be  im- 
proved and  its  surroundings,  and  to  report  to  the  court  their  opinion, 
whether  the  improvement  proposed  will  be  advantageous  to  the  es- 
tate of  said  ward  or  not." 

78.  How  much  moneyto  be  so  used. — Upon  the  final  hearing,  if  the 
prayer  of  the  petition  be  granted,  the  court  must  fix  the  amount 
of  said  ward's  money  and  personal  estate  that  may  be  used  in  mak- 
ing said  improvment.3 

79.  May  unite  with  owners  of  adjacent  property. — The  court  may 
authorize  said  guardian  to  unite  with  the  owners  of  adjoining  and 
adjacent  property  in  improving  the  premises  of  said  ward,  and  of 
said  adjacent  owners,  aud  for  the  proper  management  and  repair 
of  said  property,  when  so  improved,  upon  such  equitable  terms  and 
conditions  as  shall  be  approved  by  said  court.'' 

80.  Guardians  report. — The  amount  of  money  and  personal  estate 
expended  in  making  said  improvement  shall  be  by  said  guardian 
distinctly  reported,  under  oath,  to  said  court  within  forty  days  after 
said  improvement  shall  have  been  completed.4 

81.  Line  of  descent,  in  certain  case. — The  statute  provides  that 
in  case  of  said  ward's  death  without  being  restored  to  reason,  if 
there  are  heirs  of  said  ward  who  inherit  real  estate  only  from  said 
ward,  then  said  sum  of  money  so  expended  by  said  guardian  in  im- 
proving said  real  estate  of  said  ward,  shall  descend  and  pass  the 
same  as  the  other  personal  estate  of  said  ward,  and  the  same  shall 
be  a  charge  on  said  premises  so  improved  in  favor  of  said  heirs  of 
said  deceased  ward  who  inherit  the  personal  estate.4 

1  \  [6316,-1],  Giauque's  Kev.  Stat.;  86  v.  31,  g  1. 

2  g  [6316,-2],  Giauque's  Rev.  Stat.;  86  v.  32,  g  2. 

3  g  [6310,-3],  Giauque's  Kev.  Stat.;  86  v.  32,  g  3. 

4  g  [6316,-4],  Giauque's  Rev.  Stat.;  86  v.  32,  g  4. 


CHAP.  20.  1-4.]        GUARDIANSHIP   OP    DRUNKARDS. 


249 


CHAPTER  20. 

GUARDIANSHIP  OF  DRUNKARDS. 

Par  Par. 

1.  When  guardian  to  be  appointed        5.  No  jury  allowed, 
for  drunkards.  6-7.  Form  of  notice. 

2.  Will  be  guardian  of  drunkard's        8.  How  served. 

minor  children,  when.  9.  Subsequent  conveyance  invalid. 

3.  What  law  applicable  to.  10.  When  guardianship  shall  termi- 
ni. Notice  to  be  served  on  party,  etc.  nate. 

1.  When  guardian  to  be  appointed  for  drunkard. — The  probate 
court,  upon  satisfactory  proof  that  any  person  resident  of  the 
county  wherein  the  application  may  be  made,  is  incapable  of 
taking  proper  care  of  himself  or  herself,  or  of  his  or  her  property, 
by  reason  of  intemperance  or  habitual  drunkenness,  must  forthwith 
appoint  a  guardian  of  the  person  and  property  of  such  person,  or 
either.1 

2.  Will  be  guardian  of  drunkard's  minor  children,  unless. — Such 
guardian  will,  by  virtue  of  such  appointment,  be  guardian  also  of 
the  minor  child  or  children  of  his  ward,  in  case  no  other  be  ap- 
pointed.1 

3.  What  laws  applicable  to. — All  laws  relating  to  guardians  for 
lunatics,  idiots,  and  imbeciles,  and  their  wards,  and  all  laws  point- 
ing out  the  qualifications,  duties,  rights,  and  liabilities  of  such 
guardians,  and  their  sureties  in  force  for  the  time  being,  are  ap- 
plicable to  the  guardians  contemplated  by  this  chapter.1 

4.  Notice  to  be  served  on  party,  etc. — At  least  five,  but  not  more 
than  ten,  days  before  the  time  when  the  application  for  the  appoint- 
ment of  the  guardian  authorized  by  paragraph  1 ,  above,  is  made,  a 
notice,  in  writing,  setting  forth  the  time  and  place  of  the  hearing 
of  the  application,  must  be  served  upon  the  person  for  whom  such 
appointment  may  be  sought.2 

1  \  6317,  as  am.,  86  v.  195.  See  second  paragraph  of  note  2.  page  7.  Only 
the  guardian  can  be  authorized  to  carry  on  ward's  business;  ward's  wife 
may  be  employed.     fRam.  Dist.  Ct.)     See  note.  p.  251. 

For  forms  of  application,  appointment,  etc.,  readily  adapted  to  such  cases, 
see  preceding  chapters. 

2  ?  6318,  as  am.,  86  v.  196. 

17 


250  GUARDIANSHIP  OF  DRUNKARDS.       [CHAP.  20.  5-8. 

5.  No  jury  allowed. — The  person  for  whose  propertj'  such  ap- 
pointment is  sought  is  not  entitled  to  a  jury  trial  on  the  hearing 
of  such  application.1 

6-7.  Form  of  notice. — The  following  form  of  notice  would  be  suf- 
ficient, changing  "  property"  to  "  person,"  or  "  person  and  property," 
as  the  facts  may  require  : 

To  G.  \Y. 

You  are  hereby  notified  that  on  (name  the  day  of  the  week)  the 

—  day  of a.  d.  18 — ,  at  —  o'clock  — .  m.,  an  application 

for  the  appointment  of  a  guardian  of  your  property  will  he  for 
hearing  in  the  probate  court  of county,  Ohio,  in  its  court- 
room, in  said  county,  on  the  ground  that,  by  reason  of  your  in- 
temperance or  habitual  drunkenness,  you  are  incapable  of  tak- 
ing care  of  or  preserving  your  preperty. 

[Signed]  A.  B. 

8.  Sow  served. — This  notice  may  lie  served  in  any  way  the 
probate  judge  may  direct.2  If  served  by  any  person  other  than 
the  sheriff,  or  other  officer  in  his  official  capacity,  its  service 
should  be  verified  the  same  as  the  notice  on  page  107. 


1  The  defendant,  in  the  case  of  Hageny  v.  Cohen,  tried  in  the  Hamilton 
county  district  court,  made  an  application  in  the  court  below  for  the 
appointment  of  a  guardian  of  Hageny,  upon  the  allegation  that  he  was  a 
man,  who,  by  reason  of  his  habitual  drunkenness,  was  incapable  of  taking 
care  of  his  property.  The  guardian  was  appointed.  At  the  hearing  of  the 
case  the  defendant  below  demanded  a  trial  by  jury,  which  was  refused.  The 
refusal  to  grant  a  jury  was  the  ground  of  error. 

Judge  Burnet  decided  the  case.  He  remarked  that  the  counsel  for  the 
plaintiff  in  error  had  cited  the  court  to  a  statute  existing  during  the  terri- 
torial organization  of  Ohio,  by  which  a  jury  was  allowed,  in  inquests  of  lu- 
nacy, to  determine  the  question  whether  the  person  who  was  alleged  to  be  a 
lunatic,  was  a  lunatic  in  fact.  The  first  constitution  contained  the  same 
clause  that  is  now  contained  in  the  present  constitution,  that  the  right  of 
trial  by  jury  shall  be  held  inviolate.  Nevertheless,  under  the  practice  of 
the  State  of  Ohio,  during  the  time  the  first  constitution  existed,  a  trial  by 
jury  was  not  given  in  cases  of  the  appointment  of  guardians,  either  for 
minors  or  lunatics.  The  appointment  of  a  guardian  to  assume  control  of 
the  property  of  inebriates  was  not  known  in  Ohio  until  the  recent  statute  of 
]87i.  But  the  right  of  a  trial  by  jury  was  not  recognized  in  the  hearing  of 
any  application  for  the  appointment  of  a  guardian  under  either  the  fin  t  or 
the  present  constitution.     The  court  has  no  doubt  upon  the  question      It 

2  See  par  37,  chap.  6. 


CHAP.  20,  9-10.]     GUARDIANSHIP  OF  DRUNKARDS.  251 

9.  Subsequent  conveyance  invalid.     From  the  time  of  the  serv 
ice  of  such  notice  until  the  hearing,  or  the  day  thereof,  as  to  all 
persons  having  notice  of  such  proceeding,  no  sale,  gift,  convey- 
ance, or  incumbrance,  of  the  property  of  such  intemperate  per- 
son or  habitual  drunkard,  will  be  valid.1 

10.  When  guardianship  shall  terminate.  The  court,  upon  reas- 
onable notice  to  such  guardian,  and  to  the  person  or  persons  on 

was  not  a  matter  to  which  the  article  of  the  constitution  referred  to  the 
plaintiff  in  error  was  applicable. 

But  it  was  claimed  that  the  court  of  common  pleas  had  no  jurisdiction 
under  the  constitution  to  appoint  a  guardian,  but  that  this  jurisdiction  was 
conferred  solely  upon  the  probate  court  by  article  4,  section  8,  and  that  it 
can  not  be  conferred  by  the  legislature  on  any  other  court.  It  was  a  rule  of 
interpretation  of  the  provisions  of  the  constitution  that  they  should  be  inter- 
preted with  reference  to  the  institution  and  laws  that  had  previously  existed. 
The  only  guardians  known  to  the  law  of  Ohio  previous  to  the  adoption  of 
this  constitution,  were  the  guardians  of  infants  and  lunatics.  Under  the 
former  law  such  guardians  were  invested  with  the  control  of  both  the  person 
and  estate  of  their  wards.  This  article  of  the  constitution  must  be  prop- 
erly understood  as  applying  to  that  portion  of  the  judicial  power  which  had 
existed  in  the  state  up  to  the  time  of  the  adoption  of  this  constitution,  and 
that  it  was  intended  to  give  to  the  probate  court  that  jurisdiction  which  was 
recognized  ordinarily  as  the  probate  jurisdiction  of  the  courts  of  Ohio,  and 
which  previously  existed  in  the  common  pleas  courts.  This  law  gives  no 
control  over  the  person  of  an  inebriate,  but  simply  gives  to  the  guardian  ap- 
pointed the  right  to  control  his  property  for  his  benefit.  This  court  would 
hesitate  to  pronounce  a  law  of  the  legislature  unconstitutional,  being  itself  a 
subordinate  court,  and,  unless  the  case  were  very  clear,  would  not  feel  au- 
thorized to  render  such  a  decision.  In  the  present  case  the  court  thought 
that  the  better  judgment  was  that  the  law  was  constitutional  in  this  matter 
therefore  the  court  below  had  not  erred. 

It  was  claimed,  however,  that  the  judgment  rendered  and  the  findings  were 
contrary  to  law.  At  the  time  the  court  appointed  the  guardian,  the  inebri- 
ate was  engaged  in  business,  and  the  court,  in  addition  to  appointing  the 
guardian,  found  that  it  was  for  the  inebriate's  advantage  that  his  business 
should  be  continued,  and  that  his  wife  was  a  proper  person  to  continue  it, 
and  that  therefore  she  should  continue  it.  In  this  the  court  erred.  The 
guardian  was  the  proper  person  under  the  statute  to  be  invested  with  the 
control  of  the  property,  and  that  should  have  been  the  order  of  the  court ; 
and  if,  in  his  judgment,  it  was  desirable  to  continue  the  business,  and  the 
wife  was  the  proper  person  to  do  it,  he  would  have  authority  to  em  ploy  her  to 
conduct  the  business.     1  Bulletin,  104.     Same  case  affirmed,  29  O.  S.  82. 

1  g  6318,  as  am.,  86  v.  196. 


252  GUARDIANSHIP   OF   DRUNKARDS.  [CHA1\  20. 

whose,  application  the  appointment  was  made,  and  satisfactory 
proof  that  the  necessity  for  such  guardian  no  longer  exists,  must 
order  that  the  relation  of  guardian  and  ward  terminate,  and  that 
the  ward  be  restored  to  the  full  control  of  his  property,  as  be- 
fore the  appointment.1 


CHAP.  21,  1.] 


TRUSTEES    ACCOUNTS. 


253 


CHAPTER  21. 


TRUSTEES  GENERALLY,  AND  THEIR  ACCOUNTING. 


Par. 

1.  All  trustees  must  render  bien- 
nial accounts,  same  as  execu- 
tors, etc. 

2.  Exceptions  to  above. 

3-4.  Manner  of  settling  executors' 

and  administrators'  accounts. 
6.  Account    of    deceased,     insane, 
etc.,  executor,  administrator,  or 
guardian. 
6.  Vouchers  must  be  filed. 
7-16.  Form  of  trustees'  account,  etc. 
17-18.  Affidavit  to  partial  or  final 

account. 
19-20.   Notice  of  filing  accounts  to 

be  published. 
21.  Costs  of  notice;  how  paid. 
22-23.  Form  of  notice. 

24.  Examinations     of     accountants 
under  oath. 

25.  Probate  court  to   determine  as 
to  execution  of  trust. 

26.  Court    must    require    final    ac- 
count. 

27.  How    executor,    etc.,    compelled 

to  file  account. 
28-29.  How  return  of  inventory  en- 
forced. 


Pak. 

30.  Effect  of  revoking  letters. 

31.  If  trustee  imprisoned,  how  dis- 
charged. 

32.  Trustee  may  be  attached,  etc. 

33.  As  to  forms. 

34-35.  The  form  of  application  for 
writ  of  citation,  and  of  writ. 

36.  Form  of  journal  of  entry  of  or- 
der of  attachment. 

37-38.  Form  of  attachment  against 
trustee. 

39  Form  of  revocation  of  the  let- 
ters of  trustee. 

40.  Appeal  from  determination  of 
probate  court. 

41.  How  appeal  taken. 

42.  Force  and  effect  of  the  deter- 
mination. 

43.  Allowance  of  compensation. 

44.  When  the  court  may  accept  res- 
ignation of  trustee,  or  remove 
him. 

45.  Form  of  resignation. 

46.  Form  of  journal  entr}-  of  ac- 
ceptance of  resignation. 

47.  Form  of  removal  of  trustee. 


1.  All  trustees  must  render  bienn'ud  accounts,  same  as  executors, 
etc. — Any  trustee  of  any  non-resident  idiot,  imbecile,  or  lunatic, 
appointed  as  in  chap.  22,  and  any  trustee  heretofore  or  hereafter 
created  hy  any  last  will  or  deed,  or  appointed  by  any  competent 
authority,  to  execute  any  trust  created  by  any  such  last  will  or 
deed,  must,  as  often  as  once  each  two  years,  render  an  account 
of    the  execution  of   his  said  trust  to    the  probate    court   of  the 


254  trustees'  accounts.  [chap.  21,  2-16. 

count}'  in  which  he  was  appointed,  or  in  which  such  last  will  or 
deed  may  be  recorded,  in  the  manner  provided  by  law  for  the 
settlement  of  the  accounts  of  executors  and  administrators.1 

2.  Exceptions  to  above. — The  provisions  in  the  preceding  para- 
graph do  not  apply  in  any  case  in  which  the  will  or  deed  creat- 
ing such  trust  designates  any  other  tribunal  for  the  settlement 
of  the  trust,  or  in  which  any  other  tribunal  shall  have  acquired 
jurisdiction.1 

3.  Manner  of  settling  executors1  and  administrators'  accounts. — 
The  onl}T  provisions  of  law  relating  to  the  manner  of  settling  such 
accounts  are  in  effect  as  given  in  the  next  three  paragraphs. 

4.  Every  executor  or  administrator  must,  within  eighteen 
months  after  his  appointment,  render  his  account  of  his  adminis- 
tration upon  oath,  and  he  must,  in  like  manner,  render  such  fur- 
ther accounts  of  his  administration,  and  every  twelve  months 
thereafter;  and  also  at  such  other  times  as  may  be  required  by 
the  court  until  the  estate  shall  be  wholly  settled  ;  and  he  may  be 
examined  on  oath  upon  any  matter  relating  to  his  accounts,  the 
payments  therein  mentioned,  and  also  touching  any  property  or 
effects  of  the  deceased  which  have  come  to  his  hands.2  When  an 
account  is  rendered  by  two  or  more  joint  executors  or  adminis- 
trators, the  court  may,  in  its  discretion,  allow  the  account  upon 
the  oath  of  one  of  them.3 

5.  When  executor  or  a<lministrator  of  deceased.,  or  guardian  of  insane 
executor  or  administrator,  must  render  final  account. — Where  an  execu- 
tor or  administrator  has  died,  or  shall,  by  reason  of  insanity  or 
other  incompetency,  as  provided  by  law,  be  placed  under  guardian- 
ship before  the  estate  is  fully  administered,  it  is  the  duty  of  the 
executor,  administrator,  or  guardian  of  such  deceased  or  incompe- 
tent executor  or  administrator,  to  render  a  final  account  of  such  de- 
cedent's or  ward's  administration  within  six  months  after  his  ap- 
pointment.4 

6.  Vouchers  must  be  filed. — In  rendering  such  account,  everv 
executor  or  administrator  must  produce  vouchers  for  all  debts  and 
legacies  paid,  and  for  all  funeral  charges  and  just  and  necessarv 
expenses,  which  vouchers  must  be  filed  with  the  account;  and 
they,  together  with  the  account,  must  be  deposited  and  remain  in 
the  probate  court.5 

7-16.  Form  of  trustee's  account,  etc. — The  form  of  such  accounts, 
oaths    thereto,     etc.,    may    be    substantially    the    same    as    those 

1  2  6328.     See  41  O.  S.  206-7.  *  \  6175,  as  am..  81  v.  138.         3  g  6176. 

4  §  6175a,  as  enacted,  81  v.  138.  5  §  6183. 


chap.  21.]  trustees'  accounts.  255 

given  for  guardians  of  minors,  on  pages  156-7;  or  the  following 
form  of  account  may  be  used  : 

First1  [or,  Second  or,  Final,  etc.']  account  of  A.  B.,  trustee  of 
C.  D.,  a  non-resident  minor  [or,  idiot,  etc.] 
Accountant  charges  himself  as  follows  : 

Amount  of  sale  bill $ 

"         received  of  G.  H.  on  note — Principal $ 

Interest 

"  "         "    L.  S.    "    book  account...  

"  "         "    T.  C.    "    note  (not  inventoried) 

"  "        for  one  stove  (not  inventoried)  sold   at 

private  sale 

"  "        of  P.  P.  on  real  estate  sold  him 

"         of  interest  received  on  sale  notes 

"         received  of  the  administrator   of  the  estate  of 

H.  B.,  deceased,  the  father  of  A.  B.,  deceased.     

Etc.,  Etc. 

And  accountant  claims  credit  for  the  following  payments, 
made  in  behalf  of  said  estate  : 

Paid  M.  N.,  appraiser Voucher  No.  1 $ 

"      R.  S.,  auctioneer "  "     2 

"      C.  T.,  for  threshing  grain "  "     3 

"      C.  C,  for  coffin  for  deceased "  "     4 

"     Y.  B.,  widow's  allowance "  "     5 

"      T.E.,  physician's  bill,  last  sickness,       "  "     6 

"     L.  S.,  in  full  of  note "  '<     7 

"     J.  P.,      '■        "   account "  "     8 

"      S.  C,  legacy  in  full «  "     9 

Etc.  Etc. 

Accountant  claims  the  ordinary  legal  compensation  for  his 
services. 

And  asks  that  he  may  be  allowed,  as  compensation  for  extra 
services  performed,  the  additional  sum  of  $90.00,  for  the  rea- 
sons following  : 

Accountant  says  that  G.  H.,  from  whom  he  collected  the  sum 


1See  remarks  about  account,  on  pages  155,  158. 

Where  several  accounts  are  filed,  it  is  a  good  practice  to  entitle  them  : 

First  account,"  "second  account,"  "final  account  of,"  etc. 


256  trustees'  accounts.  [chap.  21,  17-20. 

of dollars,  resides  in ,  state  of ,  and  that  he  was 

compelled  to  make  several  trips  to  that  place,  in  order  to  secure 
to  the  estate  the  payment  of  said  claim.    His  necessary  expenses 

were dollars,  and  the  time  employed days.     For  these, 

he  thinks  an  extra  allowance  of  $90.00  to  be  but  reasonable. 

The  notes  against  T.  XL,  V.  W.,  and  E.  S.,  mentioned  in  the 
inventory,  were  not  collected,  on  account  of  the  insolvency  of 
said  debtors. 

The  book  account  against  X.  Y.,  mentioned  in  the  inventory, 
was  paid  in  the  lifetime  of  the  decedent,  as  appears  by  his  re- 
ceipt, exhibited  to  me  by  said  X.  Y. 

A.  B.,  Trustee,  as  aforesaid. 

17-18.  Affidavit  to  Partial  or  Final  Account. 

The  State  of  Ohio, county,  ss. 

A.  B.,  trustee  of  C.  D.,  a  non-resident  minor  [or,  idiot,  etc.'], 
being  sworn,  says  that  the  foregoing  account  is  in  all  respecta 
just  and  correct,  as  he  verily  believes  [if  any  of  the  property  was 
sold  at  private  sale  by  order  of  court,  here  add],  and  that  the  pri- 
vate sale  of  the  propeiMy  therein  mentioned  as  made  by  order  of 
court,  was  made  after  diligent  endeavor  to  obtain  the  best  price 
for  the  same,  and  that  the  sale  reported  is  for  the  highest  price 
that  could  be  obtained  for  said  property.  A.  B. 

Sworn  to  and  subscribed  before   me,  this  day  of  , 

18 .  A.  C,  Probate  Judge. 

19.  Citations  and  notices. — The  probate  court  must  issue  and 
have  served  in  the  same  manner  as  is  or  ma}-  be  provided  by 
law,  in  the  case  of  the  settlement  of  executors  and  administra- 
tors, the  necessary  citations  or  notices  by  publication  or  other- 
wise, requiring  all  persons  interested  to  attend  such  settlement 
and  make  objections  thereto,  if  they  have  any.1 

20.  Notice  of  filing  accounts  to  be  published. — It  is  the  duty  of 
the  probate  judge  to  cause  notice  to  be  published  in  some  news- 
paper of  the  county,  of  the  filing  of  any  accounts  by  trustees, 
etc.,  specifying  the  time  when  such  accounts  will  be  heard, 
which  must  not  be  less  than  three  weeks  after  the  publication 
of  such  notice  ;  at  which  time  it  will  be  competent  for  said  pro- 

1  §  6329. 


[chap.  21,  21-27.         trustees'  accounts.  257 

bale  judge,  for  cause,  to  allow  further  time  to  file  exceptions  to 
said  accounts.1 

21.  Costs  of  notice — how  paid. — The  costs  of  such  notice  must 
be  paid,  if  more  than  one  account  be  specified  in  the  same  notice, 
in  equal  proportions  by  the  executors,  administrators,  guardians, 
trustees,  etc.,  respectively.1 

22-3.  Form  of  notice. — The  notice  mentioned  in  the  preceding 
paragraphs  may  be  as  follows  : 

Notice  of  Trustee's  Settlement. 

Notice  is  hereby  given  that  the  [state  which]  account  of  A.  B., 
as  trustee  of  C.  D.,  has  been  filed  in  the  probate  court  of 


county,  Ohio,  for  settlement,  and  that  said  account  will  be  for 

hearing  on  the day  of ,  18 — ,  at  —  o'clock,  —  M.     All 

persons  interested  are  required  to  attend  at  such  settlement,  and 
make  known  their  objections  thereto,  if  any  they  have. 

A.  C,  Probate  Judge. 

24.  Examination  of  accountants  under  oath. — The  probate  judge 
has  full  power  and  authority  to  examine  under  oath,  all  trus- 
tees, etc.,  touching  their  accounts;  and  if  he  thinks  proper  to 
do  so,  he  may  reduce  such  examination  to  writing,  and  require 
such  trustee  to  sign  the  same ;  and  such  examination  must  be 
filed  with  the  papers  in  the  case.2 

25.  Probate  court  to  determine  as  to  execution  of  trust. — The  said 
court  has  full  power  to  hear  and  determine  all  matters  relative 
to  the  manner  in  which  the  trustee  has  executed  his  said  trust, 
and  as  to  the  correctness  of  his  accounts  rendei'ed  as  aforesaid.3 

26.  Court  must  require  final  account. — The  probate  court  has 
the  power  to  also  require  any  trustee,  created  as  aforesaid  within 
said  county,  on  the  determination  of  his  trust,  or  on  the  removal 
or  resignation  of  such  trustee,  or  in  case  of  the  death  of  the 
trustee,  to  require  his  executor  or  administrator,  to  render  a  final 
account  of  the  manner  in  which  he  has  executed  his  said  trust, 
and  to  hear  and  determine  all  matters  relating  thereto,  in  the 
same  manner  as  the  accounts  of  executors  and  administrators 
are  required  by  law  to  be  settled,3  which  is  as  follows. 

27.  How  executor,  etc.,  compelled  to  file  account. — Should  any  ex- 

i  §  6402.  2§6403.  8§6330. 


258  trustee's  account.         [chap.  21,  28-31. 

ecutor  or  administor  shall  fail  to  render  his  accounts  as  directed  by 
law,  he  may  be  compelled  to  do  so,  as  in  case  of  failing  to  file  an 
inventory;  and  the  same  proceedings  may  be  had  to  attach  and 
remove  him  and  to  appoint  a  successor.1  The  law  as  to  failure  to 
file  an  inventory  is  as  follows  : 

28.  How  return  of  inventory  enforced. — If  any  executor  or  admin- 
istrator neglects  or  refuses  to  return  such  inventory  within  three 
months  after  his  appointment,  the  probate  court  must  issue  an 
order  requiring  such  executor  or  administrator,  at  a  short  day 
therein  named,  to  return  an  inventory  according  to  law,  or  to  show 
cause  before  the  court  why  an  attachment  should  not  issue  against 
him.2 

29.  Revocation  of  letters  on  account  of  neglect  to  return  the  inventory. — 
The  law  further  provides  that  "if  such  order  can  not  be  served 
personally  by  reason  of  such  executor  or  administrator  absconding 
or  concealing  himself,  or  if,  after  personal  service,  as  provided  in 
the  preceding  section,  such  executor  or  administrator  shall  neglect 
for  thirty  days  to  make  and  return  such  inventory,  the  court  may 
remove  him,  and  new  letters  shall  be  granted  as  provided  in  section 
sixty  hundred  and  seventeen."'* 

30.  Effect  of  revoking  letters. — By  the  revocation  of  his  letters  such 
executor  or  administrator  is  deprived  of  all  power  and  control  over 
the  estate  of  the  decedent;  and  suit  may  be  brought  upon  his  bond 
to  recover  for  any  injury  sustained  by  the  estate  by  reason  of  his 
default  or  wrongful  acts,  and  to  the  full  value  of  all  the  property 
received  by  him  belonging  to  the  estate  of  the  decedent  and  not 
duly  administered.4 

31.  If  trustee  imprisoned,  how  discharged. — If  an  executor  or  ad- 
ministrator be  committed  to  jail  for  default  in  filing  an  account,  the 
probate  court  may  discharge  him  from  custody  upon  Ins  delivering, 
on  oath,  all  the  property  of  the  deceased  under  his  control  to  such 
person  as  the  court  may  authorize  to  receive  the  same.5 

1  g  6178,  as  am.,  81  0.  L.  138. 

The  power  of  proceeding  against  an  executor  or  administrator  by  citation 
or  attachment  is  a  necessary  incident  to  the  proper  exercise  of  the  jurisdic- 
tion of  the  probate  court.     Phillips  v.  State,  5  0.  S.  122. 

Such  proceeding  is  barred  by  such  lapse  of  time  as  would  be  a  bar  to  an 
action  on  the  administration  bond.     lb. 

2  g  6047,  as  am.,  81  0.  L.  138.  s  \  6049. 

4  \\  6050,  6051.  5  §§  6052,  6178. 


chap.  21,  32-35]  trustees'  account.  259 

32.  Trustee  may  le  attached,  etc.— The  same  proceedings  may 
be  had  to  attach  and  discharge  a  trustee,  and  the  same  power  is 
vested  in  the  probate  judge  to  revoke  his  letters  in  case  of  his 
failing  to  render  an  account  within  thirty  days  after  being  com- 
mitted, or  of  his  absconding  or  concealing  himself  for  the  pur- 
pose of  avoiding  the  service  of  an  order  upon  him  ;  and  the 
same  power  to  grant  new  letters,  and  with  like  effect,  as  in  the 
case  of  an  executor  or  administrator.1 

33.  As  to  forms— The  forms  required  by  the  preceding  paragraphs 
may  be  as  follows : 

34.   Form  of  application  for  writ  of  citation  agaimt  trustee  for  failing 
to  file  his  account. 

The  State  of  Ohio, county,  ss.     Probate  court. 

The  State  of  Ohio,  on  application   J 
of  H.  S.,  / 

vs.  >   Motion  for  writ  of  citation. 

A.  B.,  Trustee  of  C.  D.  ) 

H.  B.,  one  of  the  heirs  at  law  [or,  widow;  or,  creditor,  etc.] 
of  said  C.  D.,  respectfully  represents  that  more  than  [state  how 
long']  have  elapsed  since  said  trust  of  said  A.  B.  has  terminated, 
and  that  said  A.  B.  has  neglected  to  file  an  account  of  said  trust, 
as  by  law  he  is  required  to  do.  The  relator  therefore  moves  the 
court  for  a  writ  of  citation  against  the  said  A.  B.,  and  that  such 
proceedings  may  be  had  to  enforce  the  filing  of  such  account  as 
may  be  authorized  by  law.  H.  B. 

35.  Form  of  Citation. 

The  State  of  Ohio, county,  ss. 

To  A.  B.,  trustee  of  C.  D. 

You  are  hereby  required,  on  or  before  the day  of , 

A.  d.  18 — ,  to  file  an  account  of  your  trust  of  said  C.  D.'s  estate, 
in  the  probate  court  of  said  county,  according  to  law,  or  then 
and  there  to  appear  and  show  cause  why  an  attachment  should 
not  issue  against  you  for  your  default. 

Witness  my  signature  and  the  seal  of  said  probate  court,  at 

,  this day  of ,  a.  d.  18 — . 

[l.  s.]  A.  C,  Probate  Judge. 

i  J?  6330,  6333;  6178.    as  am.,  81  v.  1 38. 


260  trustees'  account.  [chap.  21,  36-39. 

36.  Form  of  Journal  Entry  of  Order  of  Attachment. 

The  State  of  Ohio,  on  application  of,  etc,") 

vs.  I      Citation. 

A.  B.,  Trustee  of  the  estate  of  C.  D.       ) 

The  writ  of  citation  having  been  returned  served,  and  said 
defendant  having  fiiiled  to  file  an  account  of  his  trust  of  the  es- 
tate of  said  C.  D.  within  the  time  limited  in  that  behalf,  or  to 
show  cause  why  an  attachment  should  not  issue  against  him  for 
his  default,  it  is  ordered  that  a  writ  of  attachment  issue  to  the 

sheriff  of county,  to  bring  the  body  of  said  A.  B.  into  this 

court  forthwith,  to  abide  such  order  as  the  court  may  make  con- 
cerning him  in  this  behalf. 

37-8.  Form  of  Writ  of  Attachment  against  Trustee. 

The  State  of  Ohio, county,  ss. 

To  the  sheriff  of  said  county,  greeting : 

Whereas,  A.  B.,  trustee  of  the  estate  of  C.  D.,  was,  by  the  order 
of  the  probate  court  of  said  county,  required  to  file  an  account 

of  his  trust  of  said  estate,  on  or  before  the day  of ,  a.  d. 

18 — ,  or  to  show  cause  why  an  attachment  should  not  issue 
against  him  for  his  default ;  and  the  said  A.  B.,  having  failed  to 
comply  with  the  order  aforesaid,  you  are  therefore  commanded 
to  take  the  said  A.  B.,  and  have  his  bod}T  forthwith  before  said 
court,  to  abide  such  order  as  may  be  made  concerning  him  in 
this  behalf.     Hereof  fail  not ;  and  bring  this  writ  with  you. 

Witness   my  signature,  and  the  seal  of  said  probate  court,  at 

,  this day  of ,  a.  d.  18 — . 

[l.  s.]  A.  C,  Probate  Judge. 

39.  Form  of  Revocation  of  the  Letters  of  Trustee. 

A.  B.,  trustee  of  the  estate  of  C.  D.,  having  failed  to  file  an 
account  of  his  trust  of  said  estate,  according  to  law  [or,  to  give 
an  additional  bond;  or,  to  execute  a  bond  of  indemnity  to 
his  sureties,  etc.,  as  the  cause  may  be~\,  although  specially  required 
to  do  so  by  this  court,  his  letters  of  trusteeship  are  hereby  re- 
voked and  annulled,  and  he  is  divested  of  all  power,  authority 
and  control  over  the  estate  of  said  C.  D. 


chap.  21,  40-42.]         trustees'  account.  261 

40.  Appeal  from  deter  mined  ion  of  probate  court.  — The  determination 
of  the  probate  court  of  any  settlement  of  a  trustee's  account, 
whether  final  or  intermediate,  may  be  appealed  from  in  the  man- 
ner provided  for  an  appeal  from  said  court  on  the  settlement  of 
the  accounts  of  executors  and  administrators,  and  the  like  pro- 
ceedings must  be  had  on  such  appeal,  and  the  result  of  such  pro- 
ceedings on  appeal  certified  back  to  the  probate  court.1 

41.  How  appeal  taken. — The  mauner  of  taking  such  appeal  is 
stated  in  chapter  24  of  this  volume. 

42.  Force  and  effect  of  the  determination. — The  determination 
of  the  probate  court  on  any  such  settlement  will  have  the  same 
force  and  effect  as  the  like  determination  as  to  the  account  of  an 
administrator  or  executor;2    and  when  an    account  is    settled    in 

1 2  6331. 

2  Where  the  administrators  had  filed  partial  accounts,  which  had  been  set- 
led  by  a  competent  court,  and  had  thereafter  made  no  further  or  final  settle- 
ment with  the  court,  but  had  settled  all  demands  of  creditors,  and  thereupon, 
at  the  request  of  the  heirs,  made  a  full  and  final  settlement  with  the  heirs  in 
writing  and  under  seal  of  all  matters  of  administration,  and  thereupon  sur- 
rendered to  the  heirs  the  remaining  assets:  Held,  that  as  to  all  matters  that 
would  have  been  embraced  in  a  final  account  by  such  administrators  with 
the  court,  such  settlement  by  the  parties  is  final  and  conclusive,  unless  im- 
peached ;  that  as  to  all  errors  or  mistakes  in  settling  said  partial  accounts 
in  court,  which  had  been  a  matter  of  record  for  over  twenty  years,  and  must 
have  been  known  to  the  heirs,  such  settlement  is  final  and  conclusive,  unless 
impeached.     Piatt  v.  Longworth's  Devisees,  27  Ohio  St.  159. 

That  where  the  names  of  infants  are  signed  to  such  final  settlement,  with- 
out lawful  authority,  they  may,  on  coming  of  age,  if  not  otherwise  debarred, 
disaffirm  the  same,  and  compel  the  administrators  to  make  final  settlement 
in  the  proper  court.  Such  infants  have  a  plain,  adequate,  and  complete 
remedy  at  law.  as  to  all  matters  of  account,  and  can  not  invoke  the  aid  of  a 
court  of  equity  to  correct  errors  or  mistakes  in  such  partial  or  final  settle- 
ments until  they  have  exhausted  their  legal  remedj-.     lb. 

In  an  agreement  between  executors  and  heirs  in  lieu  of  a  final  account  in 
court,  where  specified  pieces  of  property  are  turned  over  by  the  executors 
to  the  heirs,  and  claims  mutually  relinquished,  and  it  is  expressed  that  this 
is  a  "full  and  complete  settlement"  of  aH  matters  that  have  been  adminis- 
tered on,  this  language  is  not  broad  enough  to  cover  a  claim  for  a  breach  of 
trust,  outside  the  line  of  the  executors,  and  not  then  known  to  the  heirs.    lb. 

An  account  rendered  by  an  executor  or  administrator,  and  settled  by  the 
probate  court,  is  not  final,  so  as  to  bar  further  inquiry  in  regard  to  the  as- 
sets of  the  estate  in  the  hands  of  the  executor  or  administrator,  not  ac- 
counted for  or  passed  on.     McAfee  v.  Phillips,  25  Ohio  St.  374. 


262  trustees'  account.  [chap.  21. 

the  absence  of  an}T  person  adversely  interested,  and  without  ac- 
tual notice  to  him,  the  account  may  be  opened  on  his  filing  ex- 
ceptions to  the  account,  at  any  time  within  eight  months  there- 
after ;  and  upon  any  settlement  of  an  account  by  a  trustee,  all 
his  former  accounts  may  be  so  far  opened  as  to  correct  an}*  mis- 
take or  error  therein,  excepting  that  any  matter  of  dispute  -be- 
tween two  parties,  which  had  been  previously  heard  and  deter- 
mined by  the  court,  can  not  be  again  brought  in  question  by 
either  of  the  same  parties  without  leave  of  the  court.1 

The  settlement  of  an  account  of  an  executor  or  administrator  by  the  pro- 
bate court  is  conclusive,  as  against  parties  with  actual  notice  of  the  settle- 
ment, of  all  matters  set  out  and  specified  therein,  and  as  to  such  matters  the 
party  rendering  the  account  can  not  he  required  to  account  a  second  time, 
unless  the  same  is  impeached  for  fraud  or  mauifest  error,     lb. 

Where  such  an  account  has  been  rendered  and  settled,  the  probate  court 
may,  at  any  time  within  the  time  limited  by  the  statute,  compel  the  execu- 
tor or  administrator  to  render  a  further  account  of  any  assets  of  the  estate 
in  his  hands  not  settled  in  a  former  account.     lb. 

Under  section  169  of  the  administration  act  (1  S.  &  C.  599),  the  filing  of 
exceptions  to  an  account  of  an  executor  or  administrator  in  the  settlement 
of  an  estate,  raises  a  matter  of  dispute  between  the  exceptor  and  such  ex- 
ecutor or  administrator  as  to  the  items  of  said  account  excepted.  Stayner's 
case,  33  Ohio  St.  481. 

When  such  matter  in  dispute  has  been  duly  heard  and  determined  by  the 
court,  it  can  not  again  be  called  in  question  by  either  of  the  same  parties 
on  the  hearing  of  a  subsequent  account,  without  leave  of  the  court.     lb. 

Exceptions  are  filed  to  items  of  a  partial  account,  which  are  heard  and 
determined  by  the  probate  court.  On  appeal  to  the  common  pleas,  the  mat- 
ter in  dispute  is  again  fully  heard  and  determined:  Held,  That  the  hearing 
and  determination  of  the  matters  involved  in  the  exceptions  by  the  common 
pleas  is  final  and  conclusive  in  the  probate  court  between  the  same  parties, 
on  the  hearing  of  all  subsequent  accounts.  In  such  case,  the  probate  court 
has  no  power  to  open  up  or  disregard  the  order, or  judgment,  of  the  court 
of  common  pleas  in  the  settlement  of  the  disputed  items  in  the  former  ac- 
count,    lb. 

The  provision  of  said  section  169,  which  authorizes  the  opening  up  of  all 
former  accounts  for  the  correction  of  errors  or  mistakes  therein,  upon  the 
filing  of  subsequent  accounts,  does  not  authorize  the  probate  court  to  open 
up  or  vacate,  at.  the  instance  of  either  of  the  parties  thereto,  a  former  or' 
der  by  the  court  of  common  pleas  on  appeal,  in  the  settlement  of  a  former 
account.  lb. 
1 1  6332. 


chap.  21,  43-47.]  trustees'  account.  263 

43.  Allowance  of  compensation. — The  probate  court  has  powei 
to  make  such  allowance  as  compensation  to  trustees  for  their 
services  and  expenses  in  executing  their  trusts,  as  the  court  may 
deem  just  and  equitable,  not  exceeding  the  compensation  al- 
lowed to  guardians  for  like  services  j1  and  said  judge  is  entitled 
to  the  same  fees  as  in  the  settlements  of  administrators  and  ex- 
ecutors.2 

44.  When  the  court  may  accept  resignation  of  trustee,  or  remove 
him. — The  probate  court  may  accept  the  resignation  of  any 
trustee  accounting  therein,  or  who  has  been  appointed  thereby,  or 
may  remove  any  such  trustee  for  any  cause  for  which  the  guardian 
of  a  minor  may  be  removed,  or  because  the  interest  of  the  trust 
requires  such  removal;  and  when  the  minor  for  whom  the  trustee 
was  appointed  has,  since  the  appointment,  become  a  resident  of 
the  state  and  for  whom  a  resident  guardian  has  been  appointed, 
the  probate  court  must  remove  such  trustee  and  require  an  im- 
mediate settlement  of  his  account.  Upon  the  resignation,  re- 
moval, or  death  of  any  such  trustee,  the  probate  court  may  ap- 
point a  successor,  who  must  give  bond  in  the  same  manner  and 
with  like  conditions  as  required  by  law  of  guardians  of  minors.3 

45.  Form  of  resignation. 

To  the  Hon.,  the  Judge  of  the  Probate  Court  of County, 

Ohio : 
The  undersigned,  trustee  of  [state  what~\,  hereby  tenders  his 
resignation  of  said  trust,  and  prays  that  it  may  be  accepted. 

A.  B.,  Trustee. 

46.  Form  of  journal  entry  of  acceptance  of  resignation. 

A.  B.,  trustee  of ,  having  tendered  his  resignation  of  said 

trust,  the  same  is,  for  a  good  cause,  accepted. 

47.  Form  of  removal  of  trustee. — [See  paragraph  39,  this  chap- 
ter.] 

i  ^po  par?.  27-34,  chapter  6.  2 1  6333. 

»  \  6334,  as  am.,  81  v.  134.     See  pars.  37-80,  chapter  3,  as  to  bond. 


2£4  TRUSTEES    FOR    NON-RESIDENTS.       [CHAP.  22,  1-2. 


CHAPTER   22. 

TRUSTEES  FOR  NON-RESIDENTS. 

Par.  Par. 

1.  How  trustees  are  appointed.  15.  How   long   trustee  to   hold  the 

2.  How  appointment  brought  about.  office. 

3-6.  Form  of   application,  etc.,  for  16.  When,    and    to    whom   trustee 
appointment.  shall  pay  over  moneys. 

7.  Journal  entry  of  appointment.  17.   How     foreign     guardian,    etc., 

8.  Jurisdiction  of  court.  may  collect  money. 

9.  Bond  of  trustee.  18-23.   Form   of  application;    peti- 
10.-12.   Form  of  trustee's  bond.  tion. 

13.  Duties  of  trustee.  24.  Trustee  may  loan  money  in  cer- 

14.  May  lease,  or  sell  real  estate  as  tain  cases, 
guardian  of  minor  appointed  in 

this  state  may. 

1.  How  trustees  are  appointed  for  non-residents. — When  any 
minor,  idiot,  lunatic,  or  imbecile,  residing  out  of  this  state,  has  any 
real  estate,  goods,  chattels,  rights,  credits,  moneys,  or  effects  in  this 
state,  the  probate  court  of  the  county  where  such  property  or 
any  part  of  it  may  be  situate,  has  power,  whenever  it  considers 
it  necessary,  to  appoint  a  trustee  of  such  minor,  idiot,  lunatic,  or 
imbecile,  to  manage,  collect,  lease,  and  take  care  of  such  prop- 
erty.1 

2.  How  appointment  brought  about. — The  probate  court  can 
make  such  appointment  without  waiting  for  any  action  on  the 
part  of  any  third  person  ;  }~et  the  facts  which  make  apparent 
the  necessity  of  such  action  will  generally  be  brought  to  the 
knowledge  of  the  court  by  some  friend  or  relative  of  such  non- 
resident;  and  in  conformity  to  the  usual  practice  in  that  court, 
the  best  way  to  proceed  would  be  for  such  friend  to  see  that  some 
proper  person,  whether  himself  or  some  one  else,  make  a  written 
statement  to  the  court,  and  an  application  for  such  appointment. 

1  §  6320 


CHAP.  22,  3-9.]  TRUSTEES  FOR  NON-RESIDENTS.  265 

3-6.  Form  of  application,  etc.,  for  appointment. 

To  the  Honorable,  the  Judge  of  the  probate  court,  of county, 

Ohio  : 

Your  petitioner  represents  that  C.  D.  is  a  minor  [or,  idiot,  etc.'], 

aged  ,  residing  at ,  in  the  state  of ;  that  said  C.  D. 

is  the  owner  of  the  following  described  property,  situate  in  said 

county  of Ohio  [or  if  not  all  in  one  county,  say  in  the  state, 

and  part  thereof  in  this  county],  to-wit : 

1.  An  80-acre  tract  of  land,  in township,  in  this 

county,  known   as  the  "  D Farm,"  probable 

value  $6,000  00 

2.  Lot  No.  — ,  in  the  village  of ,  county, 

improved,  probable  value 1,000  00 

3.  Farming  utensils  on  said  tract 150  00 

[Etc.,  etc.     See  list  on  pages  41,  42. 
Your  petitioner  makes  this,  his  application,  to  be  appointed 

trustee  of  said  C.  D.,  and  offers  B.  M.  residing  at ,  and  F. 

N.,  residing  at ,  freeholders,  as  sureties. 

Petitioner's  postoffice  address, 

His  place  of  residence,  

His  place  of  business,  

His  attorneys, 

Their  office, 

(Signed.)  A.  B. 

The  State  of  Ohio, county,  ss. 

A.  B.,  being  duly  sworn,  says  that  the  foregoing  statements 
are  in  all  respects  true  and  correct,  to  the  best  of  his  knowledge 
and  belief.  A.  B. 

Sworn  to  and  subscribed  before  me,  this  day  of 

18 — .  A.  C,  Probate  Judge,  [etc]. 

7.  Journal  entry  of  appointment — A  proper  journal  entry  of  the 
appointment  can  readily  be  adapted  from  the  form  on  page  43. 

8.  Jurisdiction  of  court. — The  appointment  of  a  trustee,  first 
lawfully  made,  will  extend  to  all  the  property  and  effects  of  the 
minor,  idiot,  lunatic,  or  imbecile  in  this  state,  and  will  exclude 
the  jurisdiction  of  the  propate  court  of  any  other  county.1 

9.  Bond  of  trustee.    The  trustee  must  give  bond,  payable  to  the 

46321. 

18 


2GG  TRUSTEES  FOR  NON-RESIDENTS.     [CHAP.  22,  12-13. 

etate  of  Ohio,  with  such  sureties  and  in  such  sura  as  shall  be 
approved  by  the  court,  not  less  than  double  the  value  of  all  the 
property  that  will  probably  come  into  his  hands.1 

10-12.  Form  of  trustee's  bond. 

Know  all  men  by  these  presents,  That  we,  A.  B.,  residing  at 
-,  as  principal,  and  E.  M.,  residing  at ,  and  F.  N.,  resid- 


ing at ,  as  sureties,  are  held  and  firmly  bound  unto  the  State 

of  Ohio,  in  the  just  and  full  sum  of dollars,  for  the  pay- 
ment whereof  well  and  truly  to  be  made,  we  jointly  and  sev- 
erally bind  ourselves,  our  heirs,  executors  and  administrators, 
and  each  of  them,  firmly  by  these  presents-     Sealed  with  our 

seals,2  and  signed  by  us  at  Cincinnati,  this day  of -,  A.  D. 

eighteen  hundred  and  . 

"Whereas,  the  Honorable  the  judge  of  the  probate  court  of  said 

count}*,  on  the day  of  a.  d.,  18—,  appointed  the  said  A.  B., 

trustee  of  C.   D.,  a  minor  [or,  idiot,  etc.,  as  the  case  may   be], 

aged years,  and  residing  at  ,  in  the  State  of ,  but 

owning  property  in  the  State  of  Ohio.     Now,  therefore, 

The  condition  of  the  above  obligation  is  such,  that  if  tae  said 
trustee  shall  well  and  truly  do,  perform  and  discharge  with  fidel- 
ity all  and  singular  the  duties,  which  he,  as  said  trustee,  ought  to 
do,  perform,  and  discharge,  and  act  in  all  things  as  required  by 
law,  then  the  above  obligation  shall  be  void  and  of  no  effect, 
otherwise  it  shah  remain  in  full  force  and  virtue. 

A.  B.     [seal.] 

E.  M.     [seal.] 

F.  K     [seal.] 
13.  Duties  of  trustee. — Such  trustee  must  take  upon  himself 

the  care  and  management  of  the  estate  and  propert}*  of  such 
minor,  idiot,  lunatic,  or  imbecile,  situate  in  his  state,  and  the  col- 
lection of  debts  and  other  demands  due  such  minor,  idiot,  luna- 
tic, or  imbecile,  from  persons  residing  or  being  in  this  state,  and 
must  settle  with  the  court,  and  be  liable  to  suit  or  removal  for 
neglect  or  misconduct  in  the  performance  of  his  duties,  in  like 
manner  as  is  or  may  be  provided  by  law  in  respect  to  guardians 

i  ?  6322.  2  See  note  1,  p.  38. 


CHAP.  22,  14-16.]    TRUSTEES  FOR  NON-RESIDENTS.  267 

of  minors,  and  as  is,  or  may  be  provided  by  law  for  the  settle- 
ment of  the  accounts  of  trustees.1 

14.  May  lease  or  sell  real  estate  as  guardian  of  minor  appointed 
in  this  state. — The  trustee  may  lease  or  sell  the  real  estate  of  such 
minor,  idiot,  lunatic,  or  imbecile,  under  the  same  rules  and  lim- 
itations as  are  now,  or  may  be  provided  by  law,  for  the  [lease 
and]  sale  of  real  estate  by  guardians  of  minors  in  this  state.2 

15.  How  long  trustee  to  hold  Ins  office. — The  said  trustee  must,  un- 
less removed  by  the  court,  hold  his  appointmentuntil  such  minor 
arrives  at  the  age  of  majority,  whether  such  minor  be  under 
twelve  or  fourteen  years  of  age  or  not,  at  the  time  of  such  ap- 
pointment, or  until  the  disability  of  such  idiot,  lunatic,  or  imbe- 
cile, shall  be  removed,  or  the  minor,  idiot,  imbecile,  or  luna- 
tic die.3 

16.  When  and  to  whom  trustee  must  pay  over  moneys. — All 
moneys  due  to  such  minor,  idiot,  lunatic,  or  imbecile,  in  the 
hands  of  such  trustee,  must,  during  the  minority  of  such  minor, 
or  during  the  disability  of  such  idiot,  lunatic,  or  imbecile,  be 
paid  over  to  the  foreign  guardian  of  such  minor,  idiot,  lunatic, 
or  imbecile,  so  far  as  necessary  or  proper  for  his  support  and 
maintenance;  or  in  case  of  the  decease  of  such  minor,  or  of  such 
idiot,  lunatic,  or  imbecile,  to  the  administrator  or  other  legal 
representative  of  such  minor,  idiot,  lunatic,  or  imbecile  :  pro- 
vided, that  the  court  which  appointed  such  trustee  must  have 
satisfactory  proof,  as  hereinafter  provided,  of  the  authority  of 
such  guardian,  or  administrator,  or  other  legal  representative,  to 
receive  the  moneys  or  estates  of  such  minor,  idiot,  lunatic,  or 


1§6322. 

2 1  6323. 

These  words  "  lease  and  "  are  not  in  the  statutes,  but  are  so  evidently  nec- 
essary to  its  meaning,  that  they  are  here  inserted  in  brackets.  The  original 
section,  in  vol.  72,  page  162,  is  as  follows :  "  The  said  trustee  may  sell  the 
real  estate  of  such  minor,  idiot,  lunatic,  or  imbecile,  under  the  same  rules 
and  limitations  as  are  now  or  may  be  provided  by  law  for  the  sale  of  real 
estate  by  guardians  of  minors  in  this  state." 

It  would  seem  that  when  the  words  "lease  or"  were  inserted  in  fche  first 
line  of  the  paragraph,  the  insertion  of  their  corresponding  words  in  the  third 
line  was  overlooked.     This  section  should  be  amended. 

8  §6324. 


268  TRUSTEES  FOR  NON-RESIDENTS.     [CHAP.  22,  17-22. 

imbecile,  and  that  the  security  given  by  such  guardian  or  admin- 
istrator, or  other  legal  representative,  is  sufficient  to  protect  the 
interest  of  such  minor,  idiot,  lunatic,  or  imbecile,  or  his  or  her 
estate,  and  must,  moreover,  deem  it  best  for  the  minor,  idiot, 
lunatic,  or  imbecile,  or  his  or  her  estate.1 

17.  How  foreign  guardian,  etc.,  may  collect  money. — When  any 
foreign  guardian,  administrator,  or  oilier  legal  representative  of 
such  minor,  idiot,  lunatic,  or  imbecile,  shall  apply  to  have  all  or 
any  of  the  moneys  or  property  in  the  hands  of  such  trustee  paid 
or  delivered  over  to  him,  he  must  file  his  petition,  or  motion,  to 
that* effect,  in  the  court  by  which  such  trustee  was  appointed, 
giving  such  trustee  thirty  days'  notice  of  the  time  of  hearing 
thereon  ;  and  he  must  also  produce  an  exemplification  from  under 
the  seal  of  the  office  (if  there  be  a  seal)  of  the  proper  court  of 
the  state  of  his  residence,  containing. all  the  entries  on  record  in 
relation  to  his  appointment,  giving  bond,  etc.,  and  authenticated 
as  required  by  the  act  of  congress  in  such  cases;  and  upon  the 
hearing  thereof,  the  court  must  make  such  order,  as,  under  all 
the  circumstances,  it  shall  deem  for  the  best  interests  of  such 
minor,  idiot,  lunatic,  or  imbecile,  orliis  or  her  estate.2 

18-23.  Form  of  application. — The  application  mentioned  in  the 
preceding  paragraph  may  be  in  the  following  form  : 

State  of  Ohio. county,  ss.,  Probate  Court, 

F.  G.,  guardian  [or,  admin'r.,efc.,as-  may'] 

be,  of,  etc.'],  plaintiff,  |  Fetition  to  have  property 

'  vaid  over 

A.  B.,  trustee  of  C.  D..  C.  D.,  [etc.,  nam-  r 

ina  all  icho  are  adversly  interested. 

Said  F.  G.  represents  that  he  is  the  guardian  of  said  C.  D.  [or, 
administrator,  etc.,  as  may  be],  duly  appointed  by  the  [name  it] 

court  of county,  in  the  State  of ;  that  as  such  guardian 

[or,  administrator,  etc.,']  he  has  given  sufficient  and  proper  bond, 
and  has  in  all  other  respects  complied  with  the  law,  as  will 
further  appear  from  the  duly  authenticated  transcripts  of  the 
records  of  said  court,  filed  herewith,  and  from  further  evidence 
to  be  produced  to  this  court,  on  the  hearing  hereof. 

Said  F.  G.,  as  said  foreign  guardian,  hereby  makes  application 


1  §  6325. 


6326. 


CHAP.  22,  23.]  TRUSTEES  FOR  NON-RESIDENTS.  269 

to  this  court  for  an  order  to  said  A.  B.,  resident  trustee  of  said 
C.  D.,  directing  him  to  pay  and  deliver  over  to  said  F.  G.,  guar- 
dian, all  the  moneys  and  other  property  of  the  said  C.  D.,  now 
in  the  keeping  and  control  of  said  A.  B.,  trustee. 

F.  G., 

Guardian  [etc."]. 

State  of ,  county  of ,  SS. 

F.  G.,  being  duly  sworn,  says  that  he  is  the  guardian  [or  other- 
wise, as  may  be~]  mentioned  in  the  foregoing  petition,  and  that 
the  various  matters  therein  set  forth  are  true,  as  he  verily  be- 
lieves. F.  G. 

Sworn  to  before  me,  and  signed  in  my  presence,  on  this 

day  of ,  a.  d.  18—.  Eichard  Eoe, 

Notary  public  in  and  for  said  county. 

24.  Trustee  may  loan  money  in  certain  case. — When  any  money 
of  such  minor,  idiot,  lunatic,  or  imbecile  ma}'  be  in  the  hands 
of  such  trustee,  and  not  likely  to  be  needed  for  the  support  and 
education  of  such  minor,  idiot,  lunatic,  or  imbecile,  said  trustee 
must  loan  the  same  in  the  same  manner  as  guardians  by  the  laws 
of  this  state  are  required  to  loan  the  moneys  of  their  wards  l  (see 
pages  66,  68). 

1  §6^7 


270 


GUARDIANS  AD  LITEM. 


[chap.  23, 1. 


CHAPTER  23. 


GUARDIANS  AD  LITEM. 


Pae, 

Par. 

1. 

DednitioH  «4. 

20. 

2. 

Defense  by ;  w\hj  appoints 

3. 

When    appointment    must    tie 

made. 

.21. 

4. 

Effect  of  appointment  «f  made 
sooner. 

22- 

5. 

Who  may  be  appointed. 

24. 

6. 

On  whose  application. 

25. 

7- 

•10.  Form     of     application,     for 

appointment    of    guardian    &d 

26. 

litem. 

11. 

Notice  to  appointee  and  accepv 
ance  by  him  necessary. 

27. 

12. 

How  notice  given  and  office  ac 
cepted. 

28. 

13- 

14.  Form  of  acceptance. 

29. 

15. 

Form  of  journal  entry  appoint 

ing  guardian  ad  litem. 

30. 

16. 

Guardian    ad    litem     can     not 
waive  notice  or  service  of  sum- 

31. 

mons. 

32. 

17. 

His   answer    irregular,   if   filed 

before  service. 

33. 

18. 

Effect  of  his  admissions,  etc. 

19. 

General  duties  of  guardian  ad 
litem. 

34. 

In  executor's,  etc.,  sale  of  real 
estate.  Good  rule  to  appoint 
always. 

Answer  of  such  guardian. 
-2S.  Form  of  answer  of  guardian 
ad  litem. 

Verification  not  needed. 
Decree  under  such  answer  im- 
peachable. 

In  proceedings  for  vacating 
streets. 

Appropriation   of   property  for 
public  use;  guardians  therein. 
His  expenses  incurred  should  be 
paid. 

Should  receive  reasonable  com- 
pensation. 

In  suits  before  magistrates. 
Form    of    consent   to    be    ap- 
pointed in  such  cases. 
Form  of  docket   entry,  on  in- 
fant's application. 
Form  of  docket  entry,  on  friend's 
application. 

In  proceedings  relating  to  luna- 
tics. 


1.  Definition  of. — A  guardian  ad  litem,  or,  expressed  in  English 
a  guardian  for  the  suit,  is  a  person  appointed  by  the  court  to  take 
care  of  the  interests  of  a  minor  in  a  civil  action  or  proceeding.1 


1No  such  guardian  is  appointed  in  a  criminal  suit  against  a  minor,  the 
court  there  acting  as  such.  Reeve's  Dom.  Rel.  318;  Ward's  case,  3  Leigh 
(Va.),  743. 


CHAP.  23,  2-4.]  GUARDIANS  AD  LITEM.  271 

He  is  considered  an  officer  of  the  court,  rather  than  a  party  to 
the  suit.1 

2.  Defense  by;  who  appoints. — Our  statutes  governing  pro- 
cedure in  common  pleas,  superior,  and  circuit  courts  on  appeal, 
specially  provide,  that  the  defense2  of  an  infant  must  be  by  a 
guardian  for  the  suit,  who  may  be  appointed  by  the  court  in 
which  the  action  is  prosecuted,  or  by  a  judge  thereof,  or  by  a 
probate  judge;3  and  this  provision  is  also  made  applicable  to 
probate  courts.4 

3.  When  appointment  must  be  made. — The  appointment  of  a 
guardian  ad  litem  can  not  be  made  until  after  service  of  sum- 
mons, or  publication.3 

4.  Effect  of  appointment,  if  made  sooner. — The  appointment  of 
such  guardian  for  minor  defendants,  who  have  not  been  served 
with  process  or  notice,  as  the  law  requires,  does  not  effect  an  ap- 
pearance for  them,  nor  give  the  court  jurisdiction  over  them.8 

^uckett  v.  Stackwell,  12  Mees.  &  Wels.  R.  779;  Sinclair  v.  Sinclair,  13 
do.  640,  646;  Brown  v.  Hull,  16  Vt.  673;  Bryant  v.  Livermore,  20  Minn. 
313,  342. 

2  If  an  infant,  conies  of  age  pending  the  suit,  he  can  assert  his  rights  at 
once,  for  himself;  and  if  he  does  not,  he  can  not,  generally,  complain  of  the 
acts  of  his  guardian  ad  litem.     Mitchell  v.  Berry,  1  Mete.  (Ky.)  602. 

3  §5003.  In  bastardy  proceedings,  the  death  of  the  mother  will  not  abate 
the  prosecution,  if  the  child  is  living,  but  a  suggestion  of  the  fact  must- be 
made,  and  the  name  of  the  child  substituted  upon  the  record  for  that  of  the 
mother,  and  a  guardian  ad  litem  appointed,  who  will  not  be  liable  for 
costs.     §5628. 

The  power  of  courts  to  appoint  guardians  ad  litem  is  wholly  discretionary, 
and  the  acts  of  inferior  courts  in  this  regard  will  not  be  reversed.  Smith  v. 
Taylor,  34  Tex.  589. 

Tbe  acts  of  such  guardians,  when  not  impeached  for  fraud,  are  binding 
on  the  infant.     lb.     Formerly  unnecessary.    18  0.535. 

*  See  paragraphs  30,  31,  chapter  6.     See  also  note  2,  p.  64. 

A  probate  court  appoints  a  guardian  ad  litem  for  an  infant  solely  because 
of  his  infancy,  the  law  regarding  him  as  incapable  of  taking  care  of  himself. 
Fleming  v.  Johnson,  "26  Ark.  421. 

5  §  5004.  See  also,  cases  cited  in  next  note.  As  to  presumption  of  service, 
when  guardian  ad  litem,  appears  and  defends,  see  15  ().  715;   7  O.,  pt.  2,  138. 

6  Moore  v.  Starks,  1  O.  S.  269  ;  Linnville  v.  Darby,  57  Tenn.  306;  Graham 
v.  Sublet!.,  6  J.  J.  Marsh.  (Ky.)  44;  Jones  v.  McGintv,  3  Dana  (Ky.)  425; 
Stanton  v.  Pollard,  24  Miss.  154;  Prewett  v.  Ladd,  36  lb.  495;  Crippeh  v. 
Crippen,  1  Head  (Tenn.)  128. 

To  the  contrary,  Banta  v.  Marsh,  2  A.  K.  Marsh.  (  Ky.)  166. 


272  GUARDIANS    AD    LITEM.  [CHAP.   11,  5-6. 

5.  Who  may  be  appointed — As  to  non-resident  lunatics. — The 
general  rule  is  that  no  person  interested  in  the  suit,  in  any  way, 
should  be  appointed  guardian  ad  litem}  As  to  non-resident  lu- 
natics, see  note.1 

6.  II on:  appointed,  on  whose  application.  The  appointment  may 
be  made  upon  the  application  of  the  infant,  if.  being  of  the  age 
of  fourteen  years,  lie  apply  within  twenty  days  utter  the  return 
of  the  summons,  or  service  by  publication  ;  and  in  case  of  his 
being  under  said  age.  or  of  his  neglect  so  to  apply,  the  appoint- 

Ir  was  error,  on  a  bill  of  revivor,  to  decree  against  infant  defendants,  un- 
til a  guardian  ad  litem  had  been  appointed.  St.  Clair  v.  Smith,  3  <).  355; 
Rucker  v.  Moore,  1  Heisk.  (Tenn.)  726. 

Where  a  person  is  sued  with  certain  minor  defendants  in  chancer}',  as 
their  guardian,  and  he  appears,  answers  and  defends  in  that  capacity,  and 
procures  a  reversal  of  the  decree  against  the  minors,  a  second  decree  against 
the  minors  will  be  reversed,  because  the  record  shows  no  appointment  of  a 
guardian  ad  litem,  or  proof  that  such  person  was  in  fact  guardian.  Tuttle 
v.  Garrett,  74  111.  444. 

Where  an  action  is  commenced  against  a  minor,  and  judgment  against 
him  rendered  without  the  appointment  of  a  guardian  ad  litem,  and  without 
his  appearance  at  the  trial,  and  thereafter,  on  his  becoming  of  age,  upon  his 
petition,  the  judgment  is  vaca;ed  and  set  aside,  and  the  ease  set  down  for 
trial,  it  is  error  then  to  appoint  a  guardian  ad  litem,  and  permit  such  guardian 
to  take  charge  of  and  control  the  delense;  and  judgment  rendered  on  such 
trial  against  him  by  his  next  friend  and  guardian  ad  litem  will  be  reversed. 
Patton  v.  Furthmier,  16  Kan.  29. 

1  Parker  v.  Lincoln,  12  Mass.  16;  Walker  v.  Crowder,  2  Ired.  (N.  C. )  Eq. 
478;  Walker  v.  Hallett,  1  Ala.  379:  Grant  v.  Van  Schoonhoven,  9  Paige  (N. 
Y.i  255;  Humes  c.  Shillington,  22  Md.  346;  Elrod  v.  Lancaster,  2  Head 
(Tenn.  I,  571. 

The  plaintiff's  husband,  although  father  and  gnardian  of  infant  defend- 
ants, should  not  be  appointed  their  guardian  ad  litem.  Bicknell  v.  Bicknell, 
111  Mass.  265. 

To  some  extent  contra,  sec  McGuire  v.  McGowan,  4  Desau.  (S.  C.)   t86. 

The  irregularity  of  appointing  one  who  wax  himself  not  of  full  age, 
guardian  ad  litem,  for  an  infant  plaintiff,  held,  not  to  be  waived  by  defend- 
ant's answering  to  the  merits,  where  he  had  no  knowledge,  at  the  time  of  an- 
swering, of  the  guardian's  nonage.  Wolford  r.  Oaklev,  ■!.".  How  (N  Y  ) 
Pr.  118. 

8  Where  a  lunatic  defendant  is  a  non-resident  of  the  state,  and  has  been 
brought  into  court  by  publication,  it  is  competent  for  the  court  to  appoint  a 
guardian  ad  litem  to  defend  the  ,-uit,  although  such  guardian  ad  litem  may 
not  have  been  appointed  the  general  guardian  or  committee  of  the  lunatic. 
Sturgea  v.  Longworth,  1  0.  S.  545. 

It  is  error  for  the  court  to  decree  against  a  lunatic  without  an  answer  from 
his  guardian  ad  litem.     lb. 

When  a  decree  is  taken,  as  on  petition  confessed,  against  a  lunatic  and 
his  guardian  ad  litem,  as  in  default  For  answer,  plea,  or  demurrer,  even  if 
the  court  had  heard  evidence  as  to  the  complainant's  claim,  it  would  not 
have  cured  the  error;  such  evidence  would  b  •  beard  put  of  time.     lb. 


CHAP.  23,  7-1 5.J  GUARDIANS    AD    LITEM.  273 

ment  may  be  made  on  the  application  of  the  plaintiff,  or  a 
friend  of  the  infant.' 

7-10    Form  of  Application  for  appointment  of  Guardian  ad  litem. 

Give  the  title  of  the  case,  as  for  instance : 

The  State  of  Ohio. county,  ss.,  Probate  Court. 

A.  B.,  guardian  of  C.  D.,  a  minor,  plaintiff, ")      Application  for  ap- 
vs.  >  pointment  of  guard  - 

Said  C.  D.,  defendant.  )  ian  ad  litem. 

The  said  C.  D.,  a  minor  over  fourteen  years  of  age  [or,  A.  B., 
plaintiff,  or,  L.  D  ,  a  relative,  or,  S.  T.,  a  friend  of  said  C.  D.,  etc.-], 
hereby  applies  for  the  appointment  of  a  guardian  ad  litem  for 
the  said  C.  D.,  in  this  cause,  and  suggests  that  R.  H.  be  ap- 
pointed said  guardian. 

(Signed)  . 

,  18-. 

11.  Notice  to  appointee,  and  acceptance  by  him,  necessary. — The 
guardian  ad  litem  must  have  notice  of  his  appointment,  and  must 
do  something  to  signify  his  acceptance.2 

12.  How  notice  given  and  office  accepted. — The  guardian  may 
be  notified  in  an}-  way  the  court  may  direct  or  sanction  ;  but  the 
rule,  prevalent  in  many  tribunals,  that  the  guardian  ad  litem  must 
appear  in  person  in  open  court,  and  accept  the  office,  is  one  wor- 
thy of  universal  adoption.  An  acceptance  in  writing,  in  sub- 
stantially the  following  form,  should  be  handed  to  the  court  by 
the  person  accepting,  and  this  should  be  approved  by  the  judge, 
and  entered  on  the  record. 

The  appointment  of  a  guardian  ad  litem  to  an  infant  not  a  party  to  the 
suit,  is  a  nullitjr;  but  where  made  after  such  infant  became  a  party  defend- 
ant, no  matter  how  irregular  it  may  have  been,  it  is  not  void,  but  voidable 
merely;  and  not  being  reversed  or  set  aside,  the  appointment  of  another  is 
void.     Bondurant  v.  Sibley,  1  Ala.  Sel.  Cas.  489 ;  37  Ala.  565. 

2Bwing  v.  Higby,  7  0.  1st  pt.  203;  St.  Clair  v.  Smith,  3  0.  355,  364. 

The  court  will  not  appoint  any  person  guardian  ad  litem  without  his  writ- 
ten consent.     McVicker  v.  Constable,  Hupk.  (N.  Y.)  102. 


274  GUARDIANS   AD   LITEM.  [CHAP.  23,  13-16. 

13-14.  Form  of  Acceptance.. 

[Give  title  of  case,  as  in  pars.  7-10,  on  page  273,  or  otherwise, 
as  the  facts  require,  and  then  add']  : 

And  now  conies  the  said  A.  L.,  heretofore  appointed  guardian 
ad  litem  of  said  C.  D.,  a  minor  defendant  [or,  if  guardian  ad  litem 
of  more  than  one,  name  them  all],  and  in  open  court  accepts  said 
appointment. 

(Signed)  A.  L. 

15.  Form  of  Journal  Entry  Appointing  Guardian  ad  litem. 

[Give  the  usual  caption.] 

On  application  of  A.  B.,  [or  other  person,  as  may  be],  A.  L.  was 
this  day  appointed  guardian  ad  litem  for  C.  D.,  minor  defendant 
to  send  petition  ;  and  thereupon  said  A.  L.  appeared  in  open 
court,  and  accepted  said  appointment. 

16.  Guardian  ad  litem  can  not  waive  notice  or  service  of  summons. 
— Section  6144  provides  that  "  no  guardian  ad  litem  shall  have 
authority  to  waive  notice   or  service   of  summons."  x     Though 

xTo  same  effect,  see  Robbins  v.  Robbins,  2  Ind.  74;  Gibson  v.  Chouteau, 
39  Mo.  536. 

Previous  to  the  act  of  March  23,  1840,  there  was  no  such  provision  of  the 
statute  law,  and  the  practice  of  the  courts  as  to  the  manner  of  service  upon 
minors  varied  throughout  the  state,  and  acceptance  of  service  by  guardian 
ad  litem  for  infant  defendants  in  some  cases,  and  his  appearing  and  answer- 
ing for  them  in  others,  was  held  by  the  supreme  court  to  be  sufficient,  es- 
pecially in  view  of  the  fact  that  to  hold  otherwise  would  disturb  the  title  to 
millions  of  dollars  worth  of  property,  though  such  practice  was  admitted  to 
be  loose  and  irregular.  (See  8  0.  S.  617.)  "  The  statute  of  1840,  for  the 
first  time,  made  the  proof  of  proper  notice  to  the  defendants  a  condition 
precedent  to  any  action  of  the  court  in  such  a  case,  and  prohibited  the 
waiver  of  notice  by  a  guardian  ad  litem  in  behalf  of  his  wards.  The  statute 
having  been  until  that  time  silent  on  the  subject,  a  previous  practice  to  the 
contrary,  in  these  particulars,  would  seem  to  have  been  thereby  recognized 
and  prohibited  in  the  future.  Personal  service  of  process  was  thus  made  a 
condition  indispensable  to  the  exercise  of  jurisdiction,  and  the  practice  was 
made  uniform  throughout  the  state."  (8  O.  S.  618.)  See  Ewing  v.  Higbee, 
7  0.  pt.  1,  198;  Ewing  v.  Hollister,  same,  pt.  2,  138;  Robb  v.  Irwin,  15  O. 
689;  Lewis  v.  Lewis,  same,  715;  Snevely  v.  Lowe,  18  O.  378;  Morgan  v 
Burnett,  do.  535;  Moore  o.  Starks,  1  O.  S.  369;  Sheldon  v.  Newton,  3  O.  3. 
494;  Benson  v.  Cilley,  8  0.  S.  604. 

The  provision  of  the  act  of  1840,  above  alluded  to,  is  nearly  the  same  as 


CHAP.  23,  17-19.]  GUARDIANS    AD    LITEM.  275 

this  section  is  in  the  chapter  relating  to  executors  and  adminis- 
trators, and  this  section  itself  relates  to  sales  of  lands  by  such 
officers,  yet  its  language  is  general  as  to  such  guardians,  and  no 
doubt  applies  to  all  casts. 

17.  His  answer  irregular  if  filed  before  service. — An  answer  by 
a  guardian  ad  litem  for  infant  defendants,  when  they  have  not 
b^en  served  with  process  or  otherwise  notified  according  to  law, 
io  irregular,  as  they  are  not  before  the  court; '  and  such  answer 
will  not  make  them  parlies.2 

18.  Effect  of  his  admission*,  etc. — A  guardian  ad  litem  can  not 
bind  his  ward  by  his  admissions  against  such  ward  ; 3  nor  can  he 
waive  any  of  such  ward's  rights,  even  by  his  neglect  or  omis- 
sion.4 No  decree  can  be  made  against  an  infant  upon  the  admis- 
sions of  such  guardian  in  his  answer.5 

19.  General  duties  of  guardian  ad  litem. — In  deciding  the  ably 
conducted  and  important  case  of  Long  v.  Mulford,6  White,  J. 
used  the  following  language  :  "  The  appointment  of  a  guardian 
ad  litem  is  not  a  mere  matter  of  form.  A  suit  against  an  infant 
can  not  he  prosecuted  without  such  guardian  ;  and  the  object  of 

§  6144,  being  in  words  as  follows  :  "  Sec.  CXXVII.  It  shall  not  be  necessary, 
unless  the  petition  is  contested,  to  appoint  guardians  ad  litem  for  infant  de- 
fendants ;  and  no  such  guardian  shall  have  authority  to  waive  notice  or  ser- 
vice of  subpoena.'1     See  38  0.  L.  146 ;  S.  &  C.  590  (125). 

1  Steele  v.  Taylor,  4  Dana  (Ky.),  445;  Shropshire  v.  Reno,  5  Dana,  583: 
Ivejv.  Ingram,  4  Caldw.  (Tenn.),  129;  see  also  note  1,  above. 

2Ivey  v.  Ingram,  4  Caldw.  (Tenn.),  129;  see  also  note  1,  above. 

8  Walton  v.  Coulson,  1  McLean,  120;  Cooper  v.  Mayhew,  40  Mich.  528; 
Turner  v.  Jenkins,  79  111.  228;  Tucker  v.  Bean,  65  Me.  352;  Fisher  v. 
Fisher,  54  111.  231;  Crabtree  v.  Niblett,  17  Humph.  (Tenn.),  488;  Reddick 
v.  Bank,  27  111.  145;  Hitt  v.  Ormsbee,  12  111.  166;  Tuttle  v.  Garrett,  16  111. 
354;  Masterson  v.  Wiswould,  18  111.  48;  Carr  v.  Fielden,  do.  77;  Taylor  v. 
Parker,  1  Smith  (Ind.),  225;  Crain  v.  Parker,  do.  374;  Benson  v.  Wright,  4 
Md.  Ch.  278;  Revely  v.  Skinner,  33  Mo.  98;  Torrey  v.  Black,  65  Barb. 
(N.  Y.),  417. 

4  Cartwright  v.  Wise,  14  111.  417;  Quigley  v.  Roberts,  44  111.  503;  Pugh  v. 
Pugh,  9  Ind.  132;  Walker  v.  Ferrin,  4  Vt.  523;  Isaacs  v.  Boyd,  5  Part. 
(Ala.),  388;  Smith  v.  Redus,  9  Ala.  99;  Lenox  v.  Notrebe,  Hempst.  (U.  S.), 
251 ;  Chandler  v.  McKinney,  6  Mich.  217. 

5  Jamf-s  v.  James,  4  Paige  (N.  Y.),  115;  Thayer  v.  Lane,  Walk.  (Mich), 
200;  Eaton  v.  Ti!lin<ihast,  4  R.  I.  276. 

8 17  0.  S.  484,  503-4. 


276  GUARDIANS   AD    LITEM.  [CHAP.  23,  20. 

the  requirement  is  to  secure  to  the  infant  a  proper  defense.  ;  It 
is  the  duty  of  a  guardian  ad  litem  to  ascertain  from  the  infant 
and  his  friends,  or  from  other  sources  of  information,  what  are 
the  legal  and  equitable  rights  of  his  ward.  And  it  is  the  special 
duty  of  the  guardian  to  bring  those  rights  directly  under  the 
consideration  of  the  court  for  decision.'  Dow  v.  Jewell,  1  Foster 
(N.  H.).  486;  Sconce  et  al.  v.  Whitney,  12  111.  150;  Knicker- 
bocker v.  De  Frust,  2  Paige  (N.  Y.),  304  ;  1  Daniels  Cb.  Pr.  Tit. 
Infants.  His  authority  is  to  protect ;  and  the  court  will  not  suf- 
fer his  ward  to  be  prejudiced  either  by  his  admissions  or  his 
laches.  Bing.  on  Inf.  135.  And  '  where  the  answer  of  the  guard- 
ion  admits  the  bill  to  be  true,  the  complainant  must  prove  its  al- 
legations with  the  same  strictness  as  if  the  answer  had  inter- 
posed a  direct  and  positive  denial.'  Enos  v.  Capps,  12  111.  257; 
8  Ohio,  377;  4  Gill,  370."  l 

20.  In  executor's,  etc.,  sale  of  real  estate;  good  rule  to  appoint 
generally. — The  statutes  provide  that,  in  these  proceedings, 
it  will  not  be  necessary,  unless  the  prayer  of  the  petition  for  a 
sale  is  contested,  to  appoint  guardians  ad  litem  for  infant  heirs 
or  devisees  or  other  persons  having  the  next  estate  of  inheritance 
from  the  deceased  who  are  defendants.2  Yet  it  will  be  observed 
that  such  appointment  is  not  forbidden  in  any  case  ;  and  it  is  a 
good  rule3  of  practice  to  appoint  such  a  guardian  in  every  case 
in  which  minors  are  defendants.  In  such  cases,  the  guardian  ad 
litem  should  satisfy  himself  that  such  a  sale  is  necessary  or  judi- 
cious under  the  circumstances,  and  if  so  satisfied,  should  file  such 

1  Ceasing  to  make  his  remarks  general,  and  applying  them  to  the  case  un- 
der consideration,  the  judge  continues:  "  It  is  plain  there  was  no  defense 
bjr  a  guardian  ad  litem.  The  only  evidence  of  the  appointment  of  a  guar- 
dian is  a  formal  answer,  the  body  of  which,  like  all  the  other  pleadings  in 
the  cause,  is  in  the  handwriting  of  the  counsel  of  the  brothers  [they  being 
the  parties  adverse  to  the  minors. — Ed.],  and  this  answer  was  only  filed  at 
the  time  of  the  filing  of  the  decree.  It  was  evidently  treated  as  a  mere 
formal  matter.  No  attention  was  paid  to  the  interests  of  the  infants,  and 
the  suit  throughout  was  conducted  as  though  it  were  an  amicable  or  ex 
parte  proceeding,  involving  no  subject  of  real  controversy.  The  counsel 
of  the  brothers  alone  appeared  in  and  had  the  management  of  the  case,  and 
his  acts  or  omissions  are  chargeable  as  theirs." 

2  §6144. 

3  See  pars.  64,  65,  chap.  6. 


CHAP.  23,  21-24.]  GUARDIANS  AD  LITEM:  277 

un  answer  as  given  in  paragraphs  22-23,  and  his  duties  will 
then  be  sufficiently  performed.  He  should  in  no  case  offer 
merely  captious  opposition. 

21.  Answer  of  such  guardian. — The  guardian  of  an  infant,  or 
of  a  person  of  unsound  mind,  must  deny  in  the  answer  all  ma- 
terial allegations  of  the  petition  prejudicial  to  such  defendant.1 

22-23.  Form  of  answer  of  guardian  ad  litem. 

State  of  Ohio, county,  ss.,  Probate  Court. 

A.  B.,  guardian  of  C.  D.,  ~) 

vs.  )-  Answer  of  minor  defendant. 

Said  C.  D.,  his  ward.      J 

Now  comes  the  said  C.  D.,  minor  defendant,  by  A.  L.,  his  duly 
appointed  guardian  for  this  suit,  and  for  answer  to  the  petition 
in  this  cause,  denies  all  the  allegations  therein  contained  in  any 
way  prejudicial  to  said  minor  defendant ;  and  further  says  that 
he  is  of  tender  years,  and  not  acquainted  with  the  law  in  such 
cases,  and  therefore  asks  the  court  to  protect  his  rights  in  this 
cause,  and  for  such  relief  as  may  be  just.         C.  D., 

By  A.  L.,  his  guardian  ad  litem. 

24.  Verification  not  needed. — The  answer  of  a  guardian  ad  litem 
need  not  be  verified  on  oath.2 

J§  5078. 

The  answer  of  a  guardian  ad  litem  must  not  be  his  personal  answer,  but 
the  answer  of  the  infant  by  the  guardian.    Johnson  v.  McCabe,  42  Miss.  255. 

Where  the  answer  does  not  in  express  terms  deny  the  allegations  of  the 
petition,  but  the  record  shows  that  it  was  so  regarded  by  the  court,  and  the 
plaintiff  was  required  to  prove  the  allegations  of  the  petition,  a  judgment 
rendered  against  such  defendant  can  not  be  reversed  on  error  for  want  of 
such  express  denial.     Randall  v.  Turner,  17  0.  S.  262. 

The  answer  of  the  guardian  ad  litem  alleging  his  ignorance  of  the.  mat- 
ters contained  in  the  petition,  and  praying  that  the  rights  of  his  wards  may 
be  protected,  has  the  effect  of  a  general  denial,  and  requires  proof  of  all  the 
material  averments  of  the  petition.     Wood  v.  Butler,  23  0.  S.  520. 

Where  the  answer  of  the  guardian  admits  the  bill  to  be  true,  the  com- 
plainant must  prove  its  allegations  with  the  same  strictness  as  if  the  answer 
had  interposed  a  direct  and  positive  denial.  Long  v.  Mulford,  17  0.  S.  484, 
503 ;   Massie  v.  Donaldson,  8  O.  377. 

Under  the  act  of  1855  (55  v.  54),  the  guardian  could  appear  and  defend 
for  his  ward  as  effectually  as  if  he  were  appointed  guardian  ad  litem.  Ran- 
kin v.  Kemp,  21  O.  S.  651.     See  paragraph  15,  chapter  19;  note  1,  p.  233. 

2  §5103. 


278  GUARDIANS  AD  LITEM.  [CHAP    23,  25-30. 

25.  Decree  under  such  answer  impeachable. — A  decree  against 
minor  defendants,  rendered  upon  the  answer  of  their  guardian 
ad  litem,  may  be  impeached  and  reversed  for  fraud.1 

26.  In  proceedings  for  vacating  street*  and  plats.  —  In  such  proceed- 
ings in  court  as  directed  by  law,  such  court  must  appoint,  when 
necessary,  a  guardian  ad  litem  for  all  minors  and  insane  persons  who 
may  be  interested  in  the  matter.2 

27.  Appropriation  of  property  for  public  use ;  guardians  therein. 
The  law  prescribes  how  property  may  be  appropriated  for  pub- 
lic uses  by  municipal  corporations,  and  provides  how  application 
therefor  must  be  made  to  the  common  pleas  or  probate  court, 
what  proceedings  must  be  had,  etc.,3  and  that  if,  at  the  time  of 
such  application,  it  appear  that  any  of  the  owners  of  the  prop- 
erty sought  to  be  appropriated  are  infants,  or  insane,  and  that 
they  have  no  guardian,  a  guardian  ad  litem  must  be  appointed 
to  act  in  their  behalf.4 

28.  His  expenses  incurred  should  be  paid. — A  guardian  ad  litem 
for  an  infant  defendant,  who  properly  defends  and  preserves  the 
rights  of  his  ward,  and  in  so  doing  incurs  expense  in  the  em- 
ployment of  counsel,  or  otherwise,  should  be  reimbursed  all  rea- 
sonable charges  paid  by  him.5 

29.  Should,  receive  reasonable  compensation.— Suvh  guardians 
are  entitled  to  reasonable  compensation  for  the  services  they  ren- 
der, which  should  be  taxed  as  a  part  of  the  costs  of  the  case.6 
The  amount  of  this  compensation  should  of  course  depend  on 
the  amount,  character  and  value  of  the  services  rendered,  to  be 
determined  by  the  court. 

30.  In  suits  before  magistrates. — When  a  guardian  to  the  suit 


1  Massie  v.  Matthews,  12  0.  351.  2  §  2656,  2613. 

3  §2656.  *§2243. 

5  Smith  v.  do.  69  111.  (1873)  308;  see  also  Waring  v.  Crane  2  Paige  (N.  Y.) 
79,  81;  Whitaker  v.  Marian,  1  Cox's  Cas.  (Eng.)  285;  Taner  v.  Ivie,  2  Ves. 
Ju'n.  vEng.)  R.  466. 

The  taxing  of  charges  in  favor  of  a  guardian  ad  litem  must  be  in  the  orig- 
nal  suit,  and  while  it  is  still  pending,  and  can  not  be  made  after  the  case  is 
disposed  of  and  gone  from  the  docket.  A  petition  for  such  taxation,  while 
the  cause  is  pending,  will  be  regarded  but  a  continuance  of  the  original 
cause.     Smith  v.  Smith,  69  111.  308  (1873). 

6  Walker  v.  Hallett,  1  Ala.  379.     See  par.  17,  chap.  19 


CHAP.  23,  30-34.]  GUARDIANS    AD    LITEM.  279 

before  a  justice  of  the  peace,  or  mayor,  is  necessary,  be  must  be 
appointed  by  the  magistrate,  as  follows  :  1.  If  the  infant  be 
plaintiff,  the  appointment  must  be  made  before  the  summons  is 
issued,  upon  the  application  of  the  infant,  if  he  be  of  the  age  of 
fourteen  years,  or  upward  ;  if  under  that  age,  upon  the  applica- 
tion of  some  friend  ;  the  consent  in  writing  of  the  guardian  to 
be  appointed,  and  to  be  responsible  for  costs,  if  he  fail  in  the  ac- 
tion, must  be  filed  with  the  justice.  2.  If  the  infant  be  defend- 
ant, the  guardian  must  be  appointed  befoi-e  trial ;  it  is  the  right 
of  the  infant  to  nominate  his  own  gurdian,  if  the  infant  be  over 
fourteen  years  of  age,  and  the  proposed  guardian  be  present,  and 
consent  in  writing  to  be  appointed;  otherwise  the  justice  may 
appoint  any  suitable  person  who  gives  such  consent.1 

31.  Form  of  Consent  to  be  Appointed  in  Such  Cases. 

A.  B.,  an  infant,  by  C.  D.,  his  guard-  ^    Before   H    M    j  p 

lan  to  the  suit,  plaintiff,  1  township, 

vs  I 

E.  M.,  defendant,  J  C0Unt^ 

I  consent  to  be  appointed  guardian  in  the  above  suit  of  A.  B., 
and  agree  to  be  responsible  for  costs,  if  said  A.  B.  fail  in  said 
action.  C.  D. 
,  18-. 

32.  The  docket  entry  may  be  thus  on  the  infant's  application  : 
"  The  said  A.  B.,  being  an  infant  upward  of  the  age  of  fourteen 
years,  on  his  application,  I  appoint  C.  D.  his  guardian  to  this  suit. 
The  said  C.  D.  appeared  and  filed  his  consent  thereto  in  writing, 
and  that  he  would  be  responsible  for  costs." 

33.  Or,  as  follows,  on  the  application  of  the  infant's  friend: 
"  The  said  A.  B.,  being  an  infant  under  the  age  of  fourteen,  on 
application  of  his  friend  C.  D.,  I  appointed  him  guardian  to  this 
suit,  who  filed  his  consent  thereto  in  writing,  and  that  he  would 
be  responsible  for  costs." 

34.  In  proceedings  relating  to  lunatics,  etc. — The  appointment 
and  special  duties  of  guardians  ad  litem  in  such  matters  have  al- 
ready been  fully  stated,  and  need  not  be  repeated  here.2 

1  \\  6474,  1744.  2  See  pars.  15-17,  chap.  19. 


280  APPEALS.  [chap.  24,  1. 


CHAPTER  24. 

APPEALS. 

Pak.  Par. 

1.  When    appeals    may    be    taken  6-7.  As  to  bond  in  error,  by  guar- 

from  probate  court  to  court  of  dian. 

common  pleas.  8-9.  Appeal   from  probate  court; 

2.  Appeal  bond  generally  required.  and  from  common  pleas.     Bills 

3.  Transcript,  when  to  be  filed.  of  exceptions. 

4.  Proceedings  in  common   pleas,  10-11.  Appeals  to  district  court, 
and  certifying  same  back.  12.  Appeals       from       magistrates' 

5.  When  appeal  bond  not  required  courts, 
of  a  guardian,  etc. 

1.  When  appeals  may  be  taken  from  probate  court  to  court  of 
common  pleas. — In  addition  to  cases  specially  provided  for,  ap- 
peals may  be  taken  to  the  court  of  common  pleas,  from  any 
order,  decision,  or  judgment  of  the  probate  court  in  settling  the 
accounts  of  an  executor,  administrator,  guardian,  and  trustees) 
and  assignees,  trustees  and  commissioners  of  insolvents  ;  in  pro- 
ceedings for  the  sale  of  real  estate  for  the  payment  of  debts  ;  in 
proceedings  to  increase  or  diminish  allowance  made  by  ap- 
praisers of  any  estate  to  any  widow,  or  minor  child  or  chil- 
dren, for  their  support  for  one  year;  in  proceedings  against 
persons  suspected  of  having  concealed,  embezzled  or  conveyed 
away  the  property  of  deceased  persons;  in  eases  for  the  com- 
pletion of  real  contracts,  from  any  order  or  decision  in  the 
administration  of  insolvents'  estates  by  assignees,  trustees  or 
commissioners  ;  and  in  proceedings  to  appoint  guardians  or 
trustees  lor  lunatics,  idiots,  imbeciles,  or  drunkards,  by  any  per- 
son against  whom  such  order,  decision,  or  decree  shall  be  made, 
or  who  may  be  affected  thereby  ;  and  the  cause  so  appealed 
must  be  tried,  heard,  and  decided  in  the  court  of  common  pleas, 


CHAP.  24,  2-4.]  APPEALS.  281 

in  the  same  manner  as  though  the  said  court  of  common  pleas 
had  original  jurisdiction  thereof.1 

2.  Appeal  bond  generally  required. — The  person  desiring  to  take 
an  appeal,  as  provided  in  the  preceding  paragraph,  must,  within 
twenty  days  niter  the  making  of  the  order,  decision,  or  decree 
from  which  he  desires  to  appeal,  give  a  written  undertaking,  ex- 
ecuted on  the  part  of  the  person  appealing,  to  the  adverse  party, 
with  one  or  more  sufficient  sureties,  to  be  approved  bjT  the  pro- 
hate  judge,  and  conditioned  that  the  party  appealing  shall  abide 
and  perform  the  order,  judgment,  or  decree  of  the  appellate 
court,  and  pay  all  moneys,  costs,  and  damages,  which  may  be 
required  of  or  awarded  against  said  party,  by  such  court;  when 
the  order,  decision,  or  decree,  from  which  the  appeal  is  taken, 
directs  the  payment  of  money,  the  undertaking  must  be  in  double 
the  amount  thereof,  and  in  other  cases,  in  such  amount  as  the 
probate  court  prescribes.2 

3.  Transcript,  when  to  be  filed. — The  probate  judge  must,  upon 
the  giving  of  the  undertaking,  or  notice,  as  aforesaid,  make  out 
an  authenticated  transcript  of  the  docket  or  journal  entries,  and 
of  the  order,  decision,  or  decree  appealed  from,  which  must  be 
filed  with  the  clerk  of  the  court  of  common  pleas,  on  or  before 
the  second  day  of  the  term  of  said  court,  next  after  an  under- 
taking or  notice  is  given,  as  hereinbefore  provided,  by  the  per-' 
son  appealing,  and  the  appeal  must  thereupon  be  considered  per- 
fected ;  the  original  papers  pertaining  to  the  cause  may  be  used 
upon  the  trial  or  hearing  in  the  court  of  common  pleas.3 

4.  Proceeding  in  common  pleas,  and  certifying  same  back. — Upon 
the  decision  of  any  cause,  appealed  to  the  court  of  common  pleas, 
the  clerk  of  said  court  must  make  out  an  authenticated  trans- 
script  of  the  order,  judgment,  and  proceedings  of  said  court 
therein,  and  must  file  the  same  with  the  probate  judge,  who  must 


1  I  6407,  as  amended,  79  0.  L.  127.  See  note  3,  p.  243. 

Semble,  that  the  parties  have  not  a  right  to  a  trial  by  jury  on  an  appeal 
from  a  judgment  of  the  probate  court.  1866  Shroyer  v.  Richmond.  16 
0.  S.  455,  467. 

Quaere,  whether  in  proceedings  on  bonds  of  executors,  guardians,  etc., 
in  the  probate  court,  under  the  act  of  April  17,  1857,  either  party  has  a  right 
to  demand  a  jury.     lb. 

2  i  6408  3§6409. 

19 


282  appeals.  [chap.  24,  5-6. 

record  the  same,  and  the  proceedings  thereafter  must  be  the 
same  as  if  such  order,  judgment,  and  proceedings  had  been  had 
in  the  probate  court.1 

5.  When  appeal  bond  not  required  of  a  guardian,  etc. — When 
the  person  appealing  from  any  judgment  or  order,  in  any  court, 
or  before  any  tribunal,  is  a  party  in  a  fiduciary  capacity,  in 
which  hi1  has  given  bond  within  the  state,  for  the  faithful  dis- 
charge of  his  duties,  and  appeals  in  the  interest  of  the  trust,  he 
will  not  !>e  required  to  give  bond,  but  must  be  allowed  the  appeal 
by  giving  written  notice  to  the  court  of  his  intention  to  appeal 
within  the  time  limited  for  giving  bond.2  This  is  also  the  rule 
in  appeals  to  the  circuit  court.3 

6.  This  is  also  the  rule  in  appeals  in  matters  relating  to  the 
appropriation  of  private  property  for  public  use ; 4  relating  to 
laying  out,  vacating,  etc.,  public  roads.5 


^G-tlO. 

2 §6408.  Executors  or  administrators,  whether  appointed  in  t'zus  statf  or 
elsewhere,  who  have  not  given  bond  in  this  state,  with  sureties,  agreeably  to 
law,  and  who  were  original  parties  to  the  action,  are  not  authorized  to  pros- 
ecute an  appeal  without  giving  an  appeal  bond.  Dennison  v.  Talmage,  29 
0.  S.  433;   Roberts  v.  Wheeler,  W.  697.  [No  doubt  true  of  guardians  also] 

Where  the  law  requires  the  appellant  to  give  such  bond,  the  court  from 
which  the  appeal  is  taken  has  no  power,  by  its  order  or  otherwise,  to  dis- 
pense with  the  execution  of  the  bond,  or  to  relieve  the  appellant  from  the 
obligation  to  give  it,  the  court's  power  in  that  respect  being  limited  to  fixing 
the  amount  of  the  bond,  and  designating  the  party  to  whom  it  shall  be  pay- 
able.    Dennison  v.  Talmage,  29  0.  S.  433. 

Where  the  appellant,  in  a  case  where  such  appeal  bond  is  required,  neg- 
lects to  give  the  same  within  the  time  limited  for  that  purpose,  the  fact  that 
the  court  below  made  an  order  to  the  effect  that  no  bond  was  required,  does 
not  authorize  the  appellant  to  perfect  his  appeal  by  afterward  giving  such 
bond  in  the  higher  court.  lb.  See  Emerick  v.  Armstrong,  1  0.  513;  Work 
v.  Massie,  6  0.  503. 

Such  an  undertaking,  signed  by  sufficient  sureties,  is  good  without  the 
signature  of  the  appellant  thereto;  and  where  it  is  defective  in  omitting,  by 
mistake,  some  of  the  conditions  required,  the  court  of  common  pleas  has 
power  to  allow  an  amendment  of  the  undertaking.  Johnson  v.  Johnson's 
Ex'r.,  31  0.  S.  137, 

3 1  5228,  as  amended,  82  0.  L.|32.     See  note  2,  this  page. 

*  I  2256.  5  §  4689.     See  par.  3,  chap.  17. 


cnAP.  24,  7-10.]  appeajls.  283 

7.  As  to  bond  in  error,  by  guardian. — The  law  provides  for  the 
giving  of  bond,  among  other  things,  in  proceedings  to  reverse, 
vacate,  or  modify  a  decree  in  the  probate,  common  pleas,  or  cir- 
cuit court ;'  but  it  also  provides,  that  guardians  who  have  given 
bond  in  this  state,  with  surety,  according  to  law,  need  not  give  such 
bond.2 

8.  Appeal  from  probate  court;  and  from  common  pleas.  Bilk  of 
'.caption*. — "Appeals  shall  be  allowed  from  any  final  order,  judg- 
ment, or  decree  of  the  probate  court  to  the  common  pleas  court,  by 
any  person  against  whom  any  such  order,  judgment,  or  decree  may 
be  made,  or  who  may  be  affected  thereby,  in  the  same  manner  as  is 
provided  for  appeals  from  the  probate  court  to  the  common  pleas 
court  in  other  cases  ;  appeals  shall  also  be  allowed  from  any  order 
or  judgment  of  the  common  pleas  court  in  like  manner,  to  the  cir- 
cuit court,  in  proceedings  under  the  sections  herein  relating  to  the 
enforcement  of  orders  of  distribution,  by  any  person  against  whom 
any  such  judgment  or  order  may  be  rendered,  or  who  may  be  af- 
fected thereby,  to  the  same  extent  and  in  the  same  manner,  as  is 
provided  for  appeals  from  the  common  pleas  court  in  other  cases; 
and  bills  of  exceptions  may  be  taken  and  allowed  upon  any  de- 
cision of  the  probate  court,  common  pleas  court,  or  circuit  court,  in 
such  proceedings  as  in  other  cases."3 

9.  The  foregoing  paragraph  is  from  the  chapter  of  the  Revised 
Statutes,  relating  to  executors  and  administrators  ;  but  its  lan- 
guage is  so  general  that  it  is  believed  to  apply  to  guardians  also  ; 
the  section  preceding  it  in  that  chapter  is  so  applicable  by  its  ex- 
press terms.  The  section  last  mentioned  is  given  as  paragraph  34 
of  chapter  5. 

10.  Appeals  to  circuit  court.— A  guardian  desiring  to  appeal 
his  cause  to  the  circuit  court,  must,  at  the  term  in  which  the 
judgment  or  order  is  rendered,  enter  on  the  records  notice  of 
such  intention  ;    and  within  thirty  days4  after  the  rising  of   the 


xl  6718,  as  am.,  82  0.  L.  37. 

3  \  5228,  as  am.  82  0.  L.  32.  See  note  2,  page  282. 

3  §  6203,  as  am.  83  0.  L.  62. 

4As  to  construction  of  when  this  time  begins  and  expires,  see  Steinberger 
v.  Steinberger,  19  0.  106;  Morgan  v.  Stittigan,  10  W.  L.  J.  74;  Harris  v. 
Gest,  4  0.  S.  469;  Hoagland  v.  Schnorr,  17  0.  S.  30. 


284  appeals.  [chap.  24,  11-12. 

court,  give  an  undertaking  with  sufficient  surety,  to  be  approved 
by  the  clerk  of  the  court,  or  a  judge  thereof,1  unless  he  has  al- 
ready given  bond,  as  specified  above. 

11.  In  such  cases,  the  clerk,  at  the  expiration  of  thirty  days 
from  the  rising  of  the  court,  must,  if  not  otherwise  directed, 
make  a  transcript,  which,  together  with  the  papers  and  pleadings 
filed  in  the  cause,  he  must  transmit  to  the  clerk  of  the  circuit 
court,  as  in  other  cases  of  appeal.2 

L2.  Appeals  from  magistrate's  courts. — Cases  tried  before  a  mayor 
or  justice  <>t'  the.  peace,  and  in  which  a  guardian  is  a  party, may, 
of  course,  be  appealed  as  other  eases  in  such  counts;3  and  guard- 
ians would,  no  doubt,  be  liable  for  any  loss  occasioned  to  the 
ward  because  of  his  negligence  in  such  appeals. 

1  g  5227,  as  amended,  82  O.  L.  32. 

One  of  several  defendants  can  appeal  the  whole  case  as  to  those  against 
whom  judgment  was  rendered,  by  giving  the  required  bond.  Emerick  v. 
Armstrong  1  O.  513.     See  3  O.  C.  C.  446. 

Bond  for  appeal  given  after  verdict  and  before  judgment,  the  appeal  will 
be  dismissed.     "Wilson  v.  Holeman,  2  O.  253. 

2  #  5228,  as  amended,  82  O.  L.  32. 

3  §§1752,  6562,  as  amended,  85  O.  L.  31 ;  6570,  6563,  6583-6591. 


CHAP.  25,  1.] 


MISCELLANEOUS  MATTERS. 


285 


CHAPTER  25. 


MISCELLANEOUS  MATTERS. 


Par. 
1- 

3. 

4. 

5. 

6. 

7. 

8. 
9. 

10. 

11. 

12. 

13- 

19. 

20. 
21. 
22. 


2.  Foreign    minors    and   guard- 
ians; rights  of,  in  this  state,  etc. 
Owners  may  fix  corner,  or  line, 
by  written  instrument. 
Record  of  such  instrument,  etc.; 
guardian's  duties  as  to. 
Rights,  etc.,  as  to  acts  of  State 
Board  of  Public  Works. 
Adopted  child;  rights  of,and as  to. 
Justice  of  the  peace;    incompe- 
tent in  certain  cases. 
As  to  firemen's  pension  fund. 
Survival  of  actions;  revivor  of 
judgments. 

Certain  sureties  may  require 
creditors  to  sue. 

How  guardian  may  become  lia- 
ble in  such  case. 

Not    applicable     to     guardian's 
bond,  etc. 
18.  Guardian's  power  in  proceed- 
ings to  sell  entailed  estates;  de- 
tails as  to. 

Privileged  communications;  ev- 
idence. 

When  a  party  shall  not  testify. 
How  guardian  may  assign  dower. 
Legal  guardian  may  consent  to 
administrator's  sale,  etc. 


Par. 

23.  When  guardian  must  select  prop- 

erty at    appraisement  of  dece- 
dent's effects. 

24.  Guardians  and  trustees  may  re- 
ceive certain  effects  in  kind. 

25.  As   to    railroad   stocks   held  by 

•iiiardiari. 

26.  Appropriation   of   ward's   prop- 

erty by  corporations. 

27.  When  guardian   need  not  give 
bond. 

28.  Guardian's  power  and  liability 
under  gaming  laws. 

29.  Penalty  for  cruelty,  etc.,  to  ward. 

30.  Guardian  may  obtain  peace  war- 

rant in  ward's  behalf. 

31.  Embezzlement,  etc.,  by   guard- 

ian or  trustee. 

ward's  registered  tj.  s.  bonds. 
32—37.  How    guardian   may    collect 
interest  of. 

38.  What     considered     satisfactory 
proof  of  guardianship. 

39.  Of  guardian'>  authority. 
40-42.  Form  of  affidavit  as  to  that. 

43.  As  to  form  of  certificate. 

44.  How  identity  of  ward  shown. 
45-48.   Affidavit  as  to  identity. 


1.  Foreign  minors  and  guardians;  their  rights  in  this  state,  etc. — 
Minors  living  out  of  this  state,  and  owning  lands  within  the 
same,  are  entitled  to  the  benefit  of  the  laws  relating  to  resi- 
dent wards  ;  and  guardians  of  minors  residing  out  of  this  state, 
who  have  been  appointed  according  to  the  laws  of  the  state  or 
territory  where  they  reside,  have  the  right  to  bring  and  main- 
tain actions,  and  enforce   the   collection   of  judgments,  rendered 


286  MISCELLANEOUS    MATTERS.  [CHAP.  25,  2-5. 

in  such  cases  in  their  favor,  in  the  same  manner  and  to  the  same 
extent  that  they  could  do  if  they  had  been  appointed  under  the 
laws  of  this  state,  upon  giving  security  for  the  costs  which  may 
accrue  in  such  actions,  in  the  same  way  other  non-residents  are 
obliged  to  do  under  the  laws  of  this  state.1 

2.  As  to  sale  of  lands  of  such  minors,  see  pages  135-7. 

3.  Adjoining  owners  may  fix  corner  or  line  by  written  instru- 
ment.—When  the  owners  of  adjoining  tracts  of  land,  or  of  lots 
in  a  municipal  corporation,  agree  upon  or  fix,  in  a  written  in- 
strument, the  site  of  any  corner  or  line,  common  to  such  tracts 
or  lots,  containing  a  pertinent  description  of  such  corner  or  line, 
either  with  or  without  a  plat,  executed,  acknowledged,  and  re- 
corded, as  is  prescribed  with  respect  to  deeds,  such  corner  or  line 
will  thenceforth  be  deemed  fixed  and  established  as  between  the 
parties  to  such  agreement,  and  all  persons  subsequently  deriving 
title  from  them.2 

4.  Record  of  such  instrument;  guardians  duties  as  to,  etc. — Such 
agreement  must  be  recorded  by  the  recorder  in  the  book  in  his 
office  in  which  surveys  are  recorded;  and  the  original  agree- 
ment, after  being  so  recorded,  or  a  duly  certified  copy  thereof 
from  the  record  aforesaid,  will  be  competent  evidence  in  any 
court  in  this  state  against  any  party  to  such  agreement  or  per- 
son in  privity  with  him.  No  such  agreement  can  be  executed 
by  any  minor,  idiot,  lunatic,  or  insane  person  ;  but  the  same 
may  be  made,  executed,  and  delivered  for  record,  on  his  behalf, 
by  his  guardian  ;  and  when  so  made,  executed,  acknowledged, 
delivered  for  record  and  recorded,  will  be  as  effectual  against 
such  minor,  idiot,  lunatic,  or  insane  person,  as  if  he  had  been 
under  no  disability,  and  had  performed  said  acts  himself.3 

5.  Rights,  etc.,  of  guardians  and  wards  as  to  the  acts  of  the  State 
Board  of  Public  Works.— The  laws  provide  how  the  state  Board 
of  Public  Works  may  purchase  or  appropriate  private  property 
for  the  use  of  the  state.4  As  these  are  very  extensive  and  impor- 
tant powers,  the  law  carefully  guards  the  rights  of  the  property 
owners,  and  designates  the  mode  of  proceeding  when  guardians 
and  wards,  as  well  as  others,  are  interested.     But  as  the  number 

16290.  2  4127.  3  ?  4128. 

4  g§  [9547]-[9563]  of  Giauque's  Rev.  Stat,  of  Ohio;  see  especially  [9549]. 


CHAP.  25,  6-9.]  MISCELLANEOUS    MATTERS. 


287 


of  guardians  and  wards  whom  these  proceedings  can  concern 
are  comparatively  few,  and  to  state  these  proceedings  fully  would 
occupy  much  space,  it  may  be  sufficient  here  to  allude  to  them 
only,  and  to  state  that  guardians  have  as  full  power  to  act  for 
their  wards  in  these  matters,  as  their  wards  themselves  would 
have,  were  they  of  full  age,  and  capable  of  acting  for  them- 
selves.1 

6.  Adopted  child;  rights  of  and  as  to. — The  statutes  provide, 
in  effect,  that  when  any  child  is  adopted,  or  heir  at  law  is  desig- 
nated, such  child  or  person  becomes  the  child  of  the  person  so 
adopting  him,  to  all  legal  intents  and  purposes,  and  as  such,  is 
the  legal  child  and  heir  of  the  adopter,  entitled  to  all  the  rights 
and  privileges,  and  subject  to  all  the  obligations,  of  a  child  of 
<he  adopter,  born  in  lawful  wedlock;  therefore,  it  follows  that 
the  person  so  adopting  a  child,  or  designating  an  heir,  has  the 
right,  while  such  child  or  person  is  a  minor,  of  appointing  by 
will  a  guardian  for  such  minor,  who  will  be  governed  by  the 
rules  relating  to  any  other  testamentary  guardian  ;  and  also  has 
all  the  rights  as  natural  guardian  that  he  would  have  were  he 
the  actual  parent.2 

7  Justice  of  the  peace  incompetent  in  certain  cases. — No  justice 
of  the  peace  is  permitted  by  law  to  try  a  case  in  which  he  is  re- 
lated to  either  party  to  the  suit,  as  either  guardian  or  ward. 3 

8.  As  to  firemen's  pension  fund. — The  law  makes  provision  quite  in. 
detail  as  to  pensions  for  firemen  in  certain  of  our  larger  cities,  and 
for  the  payment  thereof  to  the  guardian  of  a  deceased  fireman's 
minor  child  or  children  at  the  rate  of  six  dollars  per  month  for 
each  of  said  children,  until  they  arrive  at  the  age  of  sixteen  years; 
and  for  a  pension  to  the  mother  of  such  children  while  she  remains 
such  fireman's  widow.  But  the  length  and  local  character  of  such 
laws  forbid  their  full  insertion  herein.4 

9.  Survival  of  actions;  revivor  of  judgments. — Actions  for  libel, 
slander,5  malicious    prosecution,  assault,  or  assault    and    battery, 

1  g  [9555],  Giauque's  llev.  Stat,  of  Ohio. 

2  gg  3137-3140.  As  to  such  child  inheriting,  see  Quigley  v.  Mitchell,  41 
O.  S.  375;  Lathrop  v.  Young,  25  O.  S.  451. 

s  g  584.  *  See  gg  [9172],  [9191],  [9206],  of  Giauque's  Eev.  Stat. 

5  In  Dial's  Adra'r  v.  Holter,  6  Ohio  St.  228,  it  was  held  that  where  the  de- 
fendant in  an  action  for  libel  and  slander,  died  after  verdict,  but   before 


288  MISCELLANEOUS   MATTERS.  [CHAP.  25,  10 

for  nuisance,  and  against  a  justice  of  the  peace  for  misconduci 
in  office,  abate  upon  the  death  of  either  party.1  In  other  actions 
as  for  mesne  profits,  for  an  injury  to  real  or  personal  property 
for  fraud  or  deceit,  for  mone}-  due,  for  the  recovery  of  personal 
property,  and  many  others,2  the  action  survives  the  death  of 
either  party,  and  it  may  be  necessary  for  the  guardian  to  cause 
himself  to  be  made  plaintiff  or  defendant,  as  the  case  may  be. 
It  may  also  be  necessary  to  revive  a  judgment  which  has  become 
dormant.3  As  either  case  will  involve  the  necessity  for  employ- 
ing an  attorney,  it  is  not  necessary  here  to  give  the  details  of 
such  proceedings.    Roe  note  from  39  ().  S.  on  page  64. 

10.  Certain  sureties  may  require  creditors  to  sue. — A  person 
bound  as  surety  in  a  written  instrument  for  the  payment  of 
money,  or  other  valuable  thing,  may,  if  a  right  of  action  accrue 
thereon,  require  his  creditor,  by  notice  in  writing,  to  commence 
an  action  on  such  instrument  forthwith,  against  the  principal 
debtor  ;  and  unless  the  creditor  commence  such  action  within  a 
reasonable  time  thereafter,  and  proceed  with  due  diligence,  in 
the  ordinary  course  of  law,  to  recover  judgment  against  the 
principal  debtor  for  the  money  or  other  valuable  thing  due 
thereby,  and  to  make,  by  execution,  the  amount  thereof,  the  cred- 
itor, or  the  assignee  of  such  instrument,  so  failing  to  comply 
with  the  requisition  of  such  surety,  will  thereby  forfeit  the  right 
which  he  would  otherwise  have  to  demand  and  receive  of  such 
surety  the  amount  due  thereon.4 

judgment,  the  action  did  not  abate,  but  judgment  upon  the  verdict  could  be 
entered  after  his  death. 

1  §  5144. 

s §24975,  5012,  5145,  5147,  6323,  5675,  5679,  5687,  6628,  5629,  4517. 

8  §§5146-5161. 

*§5833. 

Under  a  statute  similar  to  this  section  it  was  held  that  when  the  surety 
gave  notice  to  the  creditor  to  sue,  it  was  not  a  compliance  with  the  statute 
to  sue  the  surety  alone.     Starling  v.  Buttles,  2  0.  303. 

A  surety  who  has  given  notice  in  writing  to  the  creditor  to  proceed  against 
the  principal  debtor,  must  set  forth  the  facts  in  his  answer;  he  can  not 
otherwise  avail  himself  of  it  as  a  defense  at  the  trial.  Headington  v.  NefF, 
7  0.  pt.  229. 

The  notice  is  of  no  validity  unless  in  writing.  Jenkins  v.  Clarkson,  7  O. 
1  pt.  72;    Clark  v.  Osborn,  41  O.  S.  28. 

And  it  must  contain  an  unconditional  requirement  to  commence  an  action 


CHAP.  25,  11-13.]         MISCELLANEOUS    MATTERS.  289 

11.  How  guardian  may  become  liable  in  such  case. — As  a  guard- 
ian may  have  received  such  instrument  as  a  part  of  the  ward's 
estate,  he  may  receive  such  notice  to  act,  from  a  surety  thereon  ; 
and  in  such  case,  he  would  become  personally  liable  if  he  neg- 
lected to  proceed  as  directed  in  the  preceding  paragraph. 

12.  Not  applicable  to  guardian's  bond,  etc. — The  provisions  of 
paragraph  10,  above,  are  not  applicable  to  bonds  of  guardians, 
nor  to  any  bond  or  undertaking  required  by  law  to  be  given  in 
an  action  or  legal  proceeding,  in  any  court  of  this  state.1 

13.  Guardian's  power  in  proceedings  to  sell  entailed  estates. — 
The  statutes  provide  how  entailed  estates  or  other  qualified  condi- 
tional or  determinable  interests,  etc.,  may  be  sold,  when  satisfied 
that  such  sale  would  be  for  the  benefit  of  the  first  holder,  and  do 
no  substantial  injury  to  the  heirs  in  tail,  expectancy,  reversion, 
succession,  or  remainder;  except  estates  in  dower  or  curtesy.2 

forthwith;  a  notice  that  the  surety  "wishes"  the  creditor  "  to  proceed 
against  the  principal  debtor,"  and  collect  "  the  claim,  or  have  it  arranged  in 
some  way,"  and  that  the  surety  does  "  not  wish  to  remain  bail  any  longer," 
is  not  sufficient.      29  O.  S.  663.     See  44  O.  S.  430;  40  O.  S.  101. 

1  §  5835. 

2§  5803.  The  act  of  April  4,  1859  (56  v.  154),  and  the  acts  supplemental 
thereto,  passed  March  30,  1864  (61  v.  80),  and  April  13,  1865  (62  v.  184),  in- 
clude as  well  estates  created  before  as  after  their  passage,  but  as  to  estates 
created  before  their  passage  they  are  in  conflict  with  section  19,  article  1, 
and  section  28,  article  2,  of  the  constitution,  and  inoperative,  Gilpin  v.  Wil- 
liams, 25  O.  S.  283  ;  but  not  as  to  estates  created  after  their  passage.  Nim- 
mons  v.  Westfall,  33  O.  S.  213  ;  Oylerr.  Scanlan,  33  O.  S.  308. 

The  act  of  April  13,  1865,  extends  and  applies  the  acts  of  April  4,  1859, 
and  March  3,  1864,  to  all  estates  tail  or  for  life  with  remainder  over  to  any 
other  person  or  persons,  and  to  all  determinable  estates  which  may  be  cre- 
ated by  will,  etc.,  after  its  passage.     Nimmons  v.  Westfall,  supra. 

Under  the  act  of  April  4,  1859,  and  said  supplemental  acts,  the  owner  of  a 
life  estate  in  possession  created  by  will  subsequent  to  April  13,  1865,  may 
institute  proceedings  for  the  sale  of  both  the  life  estate  and  the  estate  in  re- 
mainder; and  this  may  be  done  notwithstanding  the  testator  provided  in 
the  will  for  the  disposition  of  the  land  and  the  determination  of  the  life 
estate.    lb. 

A  tenant  for  life  who  held  the  remainder  in  an  undivided  half  of  the 
estate,  asked  under  this  section  for  a  saie  of  an  undivided  half  in  fee,  and 
the  owners  of  the  other  undivided  half  in  remainder  objected  that  such  sale 
would  injure  them,  and  the  tenant  for  life  having  consented  to  the  sale  of 


290  MISCELLANEOUS    MATTERS.       [CHAP    25,  14-16. 

14.  Sate  by  consent  of  guardian,  etc. — All  parties  in  interest 
may  appear  voluntarily,  and  consent  in  writing  to  such  sale; 
and  testamentary  guardians,  and  guardians  appointed  by  the 
court  of  probate,  may  assent,  in  the  place  of  their  wards,  to  the 
Bale.1 

As  guardians  may  be  responsible  for  the  proceeds  of  such  sales 
belonging  to  their  wards,  the  provisions  of  law  concerning  such 
proceeds  will  be  given  below. 

15.  Bow  proceeds  of  sale  disposed  of. — All  money  arising  from 
such  sales  must,  for  purposes  of  descent,  succession,  reversion,  or 
remainder,  have  the  same  character,  and  be  governed  by  th* 
same  principles,  as  the  estate  sold,  and  must  pass  according  to 
the  terms  of  the  deed,  will,  or  other  instrument  creating  the 
estate.2 

16.  How  proceeds  may  be  invested. — Money  arising  from  such 
sales  must,  under  the  direction  and  approval  of  the  court,  be  in- 
vested in  the  certificates  of  the  funded  debt  of  this  state  or  of 
the  United  States,  or  in  bonds  secured  by  mortgage  on  unincum- 
bered real  estate  situate  in  the  proper  county  of  double  the  value 
of  the  money  secured  thereby,  exclusive  of  buildings  -and  other 
improvements,  and  of  timber,  mines,  and  minerals  ;  or  the  court 
may  order  the  same  to  be  reinvested  in  other  real  estate  within 
this  state,  under  such  restrictions  as  it  may  prescribe,  which  in- 
vestment must  be  reported  to  the  court,  and  subject  to  its  ap- 
proval and  confirmation  ;  the  real  estate  in  which  the  money  is 
re-invested,  must,  for  purposes  of  descent,  succession,  reversion,  or 
remainder,  have  the  same  character,  and  be  governed  by  the  same 
principles,  as  the  estate  sold,  and  must  pass  according  to  the 
terms  of  the  deed,  will,  or  other  instrument  creating  the  estate 
sold:  the  court  must  appoint  competent  trustees  to  invest  the 
money,  and  manage  the  same,  who  must,  from  time  to  time,  re- 
port to  the  court  their  proceedings,  and  the  condition  of  the 
fund  ;  and  the  court  must  require  of  such  trustees  security  for 
the  faithful  discharge  of  their  duty ;  may,  from  time  to  time, 
require  additional  security;  may  remove  such  trustee  for  cause, 

the  whole  property,  and  the  court  having  found  that  such  sale  would  not  in- 
jure the  remaindermen,  decreed  a  sale  :  Held  that  there  was  no  error  in  this 
decree.     Oyler  v.  Scanlan,  33  Ohio  308. 

1  2 5806.  2§5808. 


CHAP.  25,   17-20.]        MISCELLANEOUS    MATTERS.  291 

or  reasonable  apprehension  thereof;  and  may  accept  the  resigna- 
tion of  a  trustee,  and  fill  a  vacancy  by  a  new  appointment.1 

17.  Who  to  receive  income,  and  pay  taxes  and  expenses. — The 
net  income  accruing  from  such  sales  must  be  paid  to  the  person 
or  persons  who  would  be  entitled  to  the  use  or  income  of  the 
estate  were  the  same  unsold  ;  and  all  taxes,  and  the  expenses  of 
the  investment  and  management  of  the  fund  must  be  paid  by 
the  person  or  persons  entitled  to  the  income  thereof.2 

18.  Such  estates  may  be  leased. — Upon  like  proceedings  the 
court  may  direct  that  such  estates  be  leased  for  a  term  of 
years,  renewable  or  otherwise,  as  may  appear  most  beneficial, 
and  upon  such  terms  as  appear  just  and  equitable;  and  the  rents 
and  profits  must  be  paid  to  the  person  or  persons  who  might 
otherwise  be  entitled  to  the  use  and  occupancy  of  the  estate,  or 
the  income  thereof.3 

19.  Privileged  communications;  evidence. — A  person  who,  if  a 
party,  would  be  restricted  in  his  evidence  under  the  next  follow- 
ing paragraph,  can,  where  the  property  or  thing  is  sold  or  trans- 
ferred by  an  executor,  administrator,  guardian,  trustee,  heir,  de- 
visee, or  legatee,  be  restricted  in  the  same  manner  in  any  action 
or  proceeding  concerning  such  property  or  thing.* 

20.  When  a  party  shall  not  testify. — A  pai'ty  can  not  testify 
where  the  adverse  party  is  the  guardian  or  trustee  of  either  a 
deaf  and  dumb  or  an  insane  person,  or  of  a  child  of  a  deceased 
person,  or  is  an  executor  or  administrator,  or  claims  or  defends 
as  heir,  grantee,  assignee,  devisee,  or  legatee,  of  a  deceased  per- 
son, except:  First.  To  facts  which  occui-red  subsequent  to  the 
appointment  of  the  guardian  or  trustee  of  an  insane  person, 
and,  in  the  other  cases,  subsequent  to  the  time  the  decedent, 
grantor,  assignor,  or  testator  died.  Second.  When  the  action  or 
proceeding  relates  to  a  contract  made  through  an  agent,  by  a 
person  since  deceased,  and  the  agent  is  competent  to  testify,  a  party 
may  testify  on  the  same  subject.  Third.  If  a  party,  or  one  having 
a  direct  interest,  testify  to  transactions  or  conversations  with  an- 
other party,  the  latter  may  testify  as  to  the  same  transactions  or 
conv  rsations.  Fourth.  If  a  party  offer  evidence  of  conversations 
or  admissions  of  the  opposite  part}T,  the  latter  may  testify  con- 

1  I  5809.  2  \  5810.  3  I  5811. 

4  \  5241.     For  cases,  see  in  Rev.  Stat,  under  this  section. 


292  MISCELLANEOUS    MA.TTERS.  [CHAP.  25,  20. 

cerning  the  same  conversations  or  admissions.  Fifth.  In  an  ac- 
tion or  proceeding  by  or  against  a  partner  or  joint  contractor,  the 
adverse  party  can  not  testify  to  transactions  with,  or  admissions 
by  a  partner  or  joint  contractor  since  deceased,  unless  the  same 
were  made  in  the  presence  of  the  surviving  partner  or  joint  con- 
tractor :  and  this  rule  can  be  applied  without  regard  to  the  char- 
acter in  which  the  parties  sue  or  are  sued.  Sixth.  If  the  claim 
or  defense  is  founded  on  a  book  account,  a  party  may  testify 
that  the  book  is  his  account  book,  that  it  is  a  book  of  original 
entries,  that  the  entries  therein  were  made  by  himself,  a  person 
since  deceased,  or  a  disinterested  person  non-resident  of  the 
county;  whereupon  the  book  must  be  considered  to  be  compe- 
tent evidence ;  and  such  book  may  be  admitted  in  evidence  in 
any  case,  without  regard  to  the  parties,  upon  like  proof  by  any 
competent  witness.  Seventh.  If  a  party,  after  testifying  orally, 
die,  the  evidence  may  be  proved,  by  either  party,  on  a  further 
trial  of  the  case ;  whereupon  the  opposite  party  may  testify  as  to 
the  same  matters.  Ei<jhth.  If  a  party  die,  and  bis  deposition  be 
offered  in  evidence,  the  opposite  party  may  testify  as  to  all  com- 
petent matters  therein.  Nothing  contained  in  this  paragraph 
applies  to  actions  for  causing  death,  or  actions  or  proceedings  in- 
volving the  validity  of  a  deed,  will,  or  codicil ;  and  when  a  case  is 
plainly  within  the  reason  and  spirit  of  this  and  the  preceding  para- 
graph, though  not  within  the  strict  letter,  their  principles  shall  be 
applied.1 

1  \  olll,  as  amended,  82  0.  L.  125. 

This  section  was  eleven  times  amended  from  its  adoption  in  the  code  of 
1853  until  the  adoption  of  the  Revised  Statutes.  For  decisions  construing  it 
in  its  different  phases,  see  A.  &  G.  W.  R.  Co.  v.  Campbell.  4  0.  S.  583; 
Myres  v.  Walker,  9  0.  S.  558;  Hoover  v.  Jennings,  11  0.  S.  624;  Bomber- 
ger  v.  Turner,  13  0.  S.  263;  Stevens  v.  Hartley,  13  0.  S.  525;  St.  Clair  v. 
Orr,  16  0.  S.  220;  Raab's  Est..  16  0.  S.  273;  Bell  v.  Wilson,  17  0.  S.  640; 
Thompson  v.  Thompson,  18  0.  S.  73;  Doughman  v.  Doughman,  21  0.  S. 
658;  HubbeU  v.  Hubbell,  22  0.  S.  208;  Baxter  v.  Leith,  28  0.  S.  84; 
MeNicol  v.  Johnson,  29  0.  S.  85;  Baker  v.  Kellogg,  29  0.  S.  663;  Wolf  v. 
Pownei*.  30  0.  S.  472;  Mosher  v.  Butler,  31  O.  S.  188;  Elliott  v.  Shaw,  32 
<).  S.  431  ;  Black  v.  Hoyt,  33  0.  S.  203.  Also,  38  O.  S.  438;  39  O.  S.  314; 
41  O.  S.  368;  ib.  401  ;  42  (>.  S.  23;  ib.  211  ;  ib.  305;  44  O.  S.  596,  599;  3  (). 
('.  C.  508;  4  0.  C.  C.  1. 


CHAP.  25,  21-23.]       MISCELLANEOUS   MATTERS.  293 

21,.  How  guardian  may  assign  dower— When  the  lauds  of  a  de- 
ceased person  arc  not  incumbered  by  mortgage,  or  by  judgment  ob- 
tained against  such  decedent  during  life,  the  heir,  or  guardian  of  any 
heir,  or  other  person  having  the  next  immediate  estate  of  inherit- 
ance, may  assign  to  the  widow  or  widower  dower  therein,  by  writ- 
ing, under  his  hand,  particularly  describing  the  same,  which,  if  ap- 
proved in  writing  on  the  deed  of  assignment  by  the  probate 
judge  of  the  county,  and  also  by  the  probate  judge  of  the  county 
appointing  such  guardian,  and  accepted  by  the  widow  or  widower, 
in  writing  thereon,  will  be  a  good  assignment  in  law.1 

22.  Legal  guardians  may  content  to  administrator's  sale,  etc. — The 
law  governing  sales  of  land  by  administrators,  etc.,  provides  that 
service,  either  actual  or  constructive,  shall  be  made  in  the  same 
manner  as  in  other  civil  actions  ;  but  that  if  all  persons  in  interest 
consent,  in  writing,  to  the  sale,  service  of  process  may  be  dispensed 
with  ;  and  that  legal  guardians  may  sign  such  consent  for  their 
wards,  except  guardians  of  the  person  only  of  minors.2 

23.  When  guardian  must  select  property  at  appraisement  of  decedent's 
effects. — When  any  person  dies,  leaving  a  widow,  or  minor  child,  or 
children,  under  the  age  of  fifteen  years,  the  following  property  is 
not  to  be  deemed  assets  or  administered  as  such,  but  must  be  in- 
cluded and  stated  in  the  inventory  of  the  estate,  and  signed  by  the 
appraisers,  without  appraising  the  same  :  First.  One  family  sewing 
machine,  to  be  retained  by  said  widow  absolutely  as  her  own  prop- 
erty, and  all  spinning  wheels,  weaving  looms,  and  stoves  set  up  and 
kept  in  use  by  the  family.  Second.  The  family  bible,  family  pic- 
tures, and  school  books  used  by  or  in  the  family  of  the  deceased, 
and  books,  not  exceeding  one  hundred  dollars  in  value,  which  were 
kept  and  used  as  part  of  the  family  library  before  the  decease  of 
such  person.  Third.  One  cow,  or  if  there  be  no  cow,  household 
goods,  to  be  selected  by  the  widow,  or  if  there  be  no  widow,  by 
the  guardian  or  next  friend  of  such  minor  child  or  children,  not 
exceeding  forty  dollars  in  value,  or  if  there  be  no  household  goods 
such  as  the  widow  or  guardian  or  next  friend  may  desire  to  select, 
then  forty  dollars  in  money ;  all  sheep  to  the  number  of  twelve, 
their  valuation  not  to  be  greater  than  seventy-five  dollars,  and  the 
wool  shorn  from  them,  and  the  yarn  and  cloth  manufactured  by  the 

i  \  5707,  as  am.,  86  O.  L.  184.  2  §  6143. 


294  MISCELLANEOUS    MATTERS.        [CHAP.   25,  24-25. 

family;  all  flax  in  possession  of  the  family  intended  for  the^  use 
thereof,  and  yarn  or  thread  cloth  manufactured  therefrom. 
Fourth.  All  the  wearing  apparel  and  ornaments  of  the  family  and 
of  the  deceased,  all  the  beds,  bedsteads,  and  bedding,  cooking  uten- 
sils, and  table-ware  necessary  for  the  use  of  the  family,  one  clock, 
one  side-saddle,  and  any  other  articles  of  personal  property  not  to 
exceed  one  hundred  dollars  in  value,  which  the  widow,  or  if  there 
be  no  widow,  the  guardian  or  next  friend  of  such  minor  child  or 
children,  may  select,  to  be  valued  by  the  appraisers.1 

24.  Guardian  or  trustee  may  receive  certain  assets  in  kind. — An 
executor  or  administrator  who  has  paid  all  the  debts  of  an  estate, 
and  has  in  his  possession  notes,  bonds,  stocks,  claims,  or  other  rights 
in  action  belonging  to  the  estate,  may,  with  the  approval  of  the 
probate  court,  entered  on  its  journal  (and  with  the  assent  and 
agreement  of  the  persons  entitled  to  the  proceeds  of  such  assets  as 
distributees,  including  executors,  trustees,  and  guardians),  distrib- 
ute and  pay  over  the  same,  in  kind,  to  those  of  such  distributees 
as  will  receive  the  same;  and  any  such  executor  or  administrator, 
when  the  debts  are  all  paid,  except  claims  in  suit  and  contested,  or 
liabilities  not  due  and  payable,  or  both,  may  provide  for  the  pay- 
ment of  such  claims  and  liabilities,  by  setting  apart  to  the  satisfac- 
tion of  the  probate  court,  enough  of  the  assets  for  that  purpose, 
and  having  done  so,  he  may,  with  the  approval,  assent,  and  agree- 
ment, aforesaid,  distribute  and  pay  over  in  cash,  or  in  kind,  all  or 
any  part  of  the  assets  in  his  hands,  and  not  set  apart,  aforesaid,  to 
such  of  said  distributees,  including  executors,  trustees,  and  guard- 
ians, as  may  be  willing  to  receive  the  same.  Such  executors, 
trustees,  and  guardians  will  be  liable  to  return  such  assets,  or  the 
proceeds  thereof,  should  the  same  be  necessary  to  pay  the  said 
claims  or  liabilities ;  and  each  of  the  other  distributees  must  give 
an  indemnifying  bond  to  the  executor  or  administrator,  to  the  sat- 
isfaction of  the  probate  court  for  the  same  purpose.  A  distribu- 
tion, in  kind,  in  either  case,  will  have  the  same  force  and  effect  as 
the  distribution  of  the  proceeds  of  such  assets.2 

25.  Wlien  railroad  stock  is  held  by  guardian,  etc. — When  any  por- 
tion of  the  stock  or  bonds  of  a  railroad  company  is  held  by  a  guard- 
ian, or  other  such  trustee,  he  may  become  a  party  to  any  agree- 

1  I  6038.  2  ?  6189. 


CHAP.  25,  26-28.]       MISCELLANEOUS    MATTERS.  295 

ment  for  the  reorganization  of  .such  company,  and  may  control,  ex- 
change, or  manage  such  stock  or  bonds  according  to  the  terms  of 
the  agreement,  and  take  and  receive  new  stock  or  bonds,  to  be  is- 
sued in  lieu  of  the  original  stock  or  bonds,  which  will  be  held  on 
the  same  terms,  and  subject  to  all  liens,  which  attached  to  the  orig- 
inal stock  or  bonds.1 

26.  Appropriation  of  ivard's  property  by  corporation.— Appropria- 
tions of  private  property  by  corporations  can  only  be  made  when 
the  corporation  is  unable  to  agree  with  the  owner,  or  his  guardian 
or  trustee,  as  to  the  compensation  to  be  paid  for  the  property  sought 
to  be  appropriated,  or  when  the  owner  is  incapable  of  contracting 
in  person  or  by  agent,  and  has  no  guardian  or  trustee,  or  is  un- 
known, or  his  residence  is  beyond  the  state,  or  unknown.2 

27.  When  guardian  need  not  give  bond. —  Guardians  need  not  give 
bond  on  appeal,3  nor  in  proceedings  in  error,  or  proceedings  to  re- 
verse, vacate,  or  modify  a  judgment  or  final  order.4 

28.  Guardian's  power  and  liability  under  gaming  laws. — The 
guardian  or  trustee  of  a  minor,  insane  person,'  or  idiot,  who  per- 
mits any  property  under  his  charge  to  be  used  for  gaming  pur- 
poses, and  the  same  becomes  liable  on  account  thereof,  will  be 
liable  to  his  ward  for  the  amount  thereof;5  and  whenever  prem- 
ises are  occupied  for  gaming  or  lottery  purposes,  the  lease  or 
agreement  under  which  they  are  so  occupied  will  be  absolutely 
void  at  the  instance  of  the  lessor,  who  may  at  any  time  obtain 
possession  by  civil  action,  or  by  action  of  forcible  detainer  before 
a  justice  of  the  peace;  and  if  any  person  lease  premises  for  gam- 
ing or  lottery  purposes,  or  knowingly  permits  them  to  be  used 
and  occupied  for  such    purposes,  and    fail    immediately  to    prose- 

i  i  3408.  2 1  6415.     For  fuller  details,  see  \\  6414-5o. 

3  See  par.  5,  chap.  24.  *  I  6721. 

5  \  4275.  This  section  also  provides  that  the  property,  both  real  and  per- 
sonal, of  a  defendant,  against  whom  a  judgment  is  rendered  under  the  chap- 
ter  of  the  Revised  Statute?  relating  to  gaming  [Chap.  5,  Title  V,  Part  Sec- 
ond], either  for  fines,  costs,  or  to  recover  money,  or  other  thing  of  value, 
lost  or  paid,  shall  be  a  lien  therefor,  without  exemption,  and  that  such  judg- 
ment shall  be  a  lien  thereon  until  paid;  that  if  the  owner  of  the  building 
in  which  the  money  was  lost  knowingly  permits  it  to  be  used  for  gaming 
purposes,  such  building,  and  the  real  estate  upon  which  it  stands,  shall  be 
liable  therefor  in  the  same  manner.  This  is  the  liability  incurred  by  the 
guardian,  referred  to  in  paragraph  28,  above. 


296  MISCELLANEOUS   MATTERS.       [CHAP.  25,  29-32. 

cute,  in  good  faith,  an  action  or  proceeding  for  the  recovery  of 
the  premises,  such  lessor  will  be  considered  in  all  cases,  civil  and 
criminal,  as  a  principal  in  carrying  on  che  business  of  gaming, 
or  a  lottery,  in  such  building.1 

29.  Penalty  for  cruelty,  etc.,  to  ward. — Any  guardiar  rtf  any  child 
or  children  under  sixteen  years  of  age,  who  willfully  abandons,  or 
tortures,  torments,  cruelly  or  unlawfully  punishes,  or  willfully,  un- 
lawfully, and  negligently  deprives  of  necessary  food,  clothing,  or 
shelter,  such  child  or  children,  is  liable  to  be  fined  not  more  than 
two  hundred  nor  less  than  ten  dollars,  or  imprisoned  not  more  than 
six  mouths,  or  boih.2 

30.  Guardian  may  obtain  peace  warrant  in  ward's  behalf. — A  guard- 
ian may  make  complaint  in  writing  upon  oath,  before  a  justice  of 
the  peace,  mayor,  or  police  judge,  that  he  has  just  cause  to  tear, 
and  does  fear,  that  a  certain  designated  person  will  commit  an  of- 
fense against  the  person  or  property  of  his  ward  ;  and  such  magis- 
trate will  then  issue  a  proper  warrant  for  the  arrest  of  the  person  so 
accused,3  who  will  be  proceeded  against  as  directed  by  law  under 
such  circumstances.' 

31.  Embezzlement  or  fraudulent  conversion  by  guardian  or  trustee. — 
A  guardian  or  trustee  who  embezzles  or  converts  to  his  own  use,  or 
fraudulently  takes  or  makes  away  with,  or  secretes  with  intent 
to  embezzle  or  convert  to  his  own  use,  any  thing  of  value  which 
comes  into  his  possession  by  virtue  of  his  appointment  as  such 
guardian,  is  guilty  of  embezzlement,  and  is  punishable  as  for  the 
larceny  of  the  thing  embezzled.0 

ward's  registered  government  bonds. 

32.  How  guardian  may  collect  interest  of.—  The  First  Comptroller 
in  the  Department  of  the  Treasury  of  the  United  States  has  re- 
cently decided,  as  is  shown  in  the  four  next  succeeding  paragraphs, 
concerning  government  bonds  registered  in  the  names  of  minors, 
that, 

i  §4276.  «§6984«.  »g'7106.  *  §§  7106-16. 

5  \  G842,  as  am.,  83  O.  L.  23.     It  applies  to  other  officers,  etc.,  also. 

The  larceny  of  any  thing  of  the  value  of  thirty-five  dollars  or  more,  is 
punishable  by  imprisonment  in  the  penitentiary  not  less  than  one,  nor  more 
than  seven  years;  of  less  value  than  that  sum,  by  fine  of  $200  or  less,  or 
imprisonment  for  not  more  than  thirty  days,  or  both.     \  6856. 


CHAP.   25,  33-39.]       MISCELLANEOUS    MATTERS.  296tt 

33.  First.  When  government  bonds  are  registered  in  the  names 
of  infants,  interest-checks  issued  in  payment  of  interest  thereon 
will  be  delivered  and  paid  only  to  the  proper  guardian  of  such  in- 
fants when  the  secretary  of  the  treasury  has  been  notified  of  such 
infancy. 

34.  Second.  Neither  the  father  nor  mother  of  an  infant  has  the 
right,  as  a  general  rule,  to  indorse  or  collect  such  interest-checks. 

3").  Tliird.  The  guardian  of  an  infant,  in  order  to  indorse  and 
collect  interest-checks  in  favor  of  his  ward,  is  required  to  file  with 
the  first  auditor,  evidence  (1)  of  guardianship,  (2)  of  his  authority 
being  in  force,  and  (3)  of  the  identity  of  his  ward  as  the  payee  in 
the  bonds. 

36.  Fourth.  The  government  is  not  liable  to  refund  to  an  infant, 
on  his  arriving  at  the  age  of  majority,  money  paid  to  him  on  his 
indorsement  of  interest-checks  during  minority,  when  the  secretary 
of  the  treasury  had  not  been  notified  of  the  fact  of  infancy. ' 

37.  In  explanation  of  the  matter  in  paragraph  24  above,  the 
First  Comptroller  of  the  Department  mentioned  states  as  follows  :2 

38.  Wfiat  will  be  considered  satisfactory  proof  of  guardianship. — 
(1)  A  duly  certified  copy  of  the  letters  of  guardianship  will  be  evi- 
dence of  guardianship.  In  those  states  in  which  no  letters  issue,  a 
certified  copy  of  the  appointment  by  the  proper  court,  showing  that 
the  guardian  gave  bond,  and  accepted  the  trust,  will  be  sufficient. 
If  the  appointment  does  not  show  acceptance,  this  may  by  proved 
by  the  affidavit  of  the  guardian  or  the  certificate  of  the  proper 
court. 

39.  Of  guardian's  authority  being  in  force. — (2)  It  will  be  suffi- 
cient evidence  that  the  authority  of  the  guardian  is  in  force  if  the 
proper  court  shall  certify  the  age  of  the  infant  as  shown  in  the  rec- 

1  Infant's  Case,  2    Lawrence  Comptroller's  Decisions,  26. 

2  An  allusion  to  the  foregoing  decision  having  been  seen  before  its  publi- 
cation, a  copy  of  it  was,  on  request,  promptly  furnished  for  use  in  this  book, 
then  already  in  press,  by  the. Hon.  William  Lawrence,  the  comptroller  men- 
tioned. It  beins;  also  desired  to  furnish  therewith  such  forms  of  proof  as 
would  be  satisfactory  to  the  treasury  department,  concerning  the  point* 
mentioned  in  paragraph  35,  above,  and  as  nobody  except  the  proper  officials 
of  that  department  could  assume  to  declare  what  proof  would  be  so,  another 
request  was  sent  for  such  forms;  and  in  answer  to  this  request,  the  matter 
found  in  paragraphs  38-48,  below,  was  very  courteously  supplied.  These 
forms  are,  therefore,  entirely  reliable. 

20 


2966  MISCELLANEOUS   MATTERS.       [CHAI\  25,  40-45. 

ord,  and  that  the  authority  of  the  guardian  is  in  force,  with  a  ref- 
erence to  the  statute  showing  the  duration  of  the  office  of  a  guard- 
ian ;  or  this  may  be  shown  by  affidavit,  as  follows: 

40-42.  Form  of  affidavit,  as  to  guardian's  authority. 

State  of  Ohio,  Logan  county,  ss. 

I,  James  Smith,  being  duly  sworn,  do  on  oatli  say,  that  I  am  a 
resident  citizen  of  said  county  and  state ;  that  I  am  the  identical 
person  who  is  the  duly  appointed,  qualified,  and  acting  guardian 
of  Leila  L.  Finley,  who  resides  at  No.  17  High  street,  in  the  city 
of  Bellefontaine,  in  said  county;  that  she  was  aged  15  years  June 
1,  1880,  and  that  my  authority  as  such  guardian  is  in  force.  The 
duration  of  my  office  of  guardian  is  prescrihed  by  sections  6257, 
6258  of  the  Revised  Statutes  of  Ohio.  James  Smith. 

Sworn  to  by  said  James  Smith  before  me,  and  by  him  subscribed 
in  my  presence,  this  day,  at  my  office  in  Bellefontaine  aforesaid. 
And  I  certify  that  said  James  Smith  is  personally  well  known  to 
me  to  be  the  identical  person  who  is  said  guardian  -above  named, 
and  that  he  is  a  credible  person. 

In  witness  whereof,  I  hereto  subscribe  my  name  and  affix  my 
Notarial  Seal,  at  my  office  in  Bellefontaine  aforesaid,  April  20, 
1881. 

[notarial  seal.]  John  M.  Lawrence, 

Notary  Public  in  and  for  said  county. 

43.  As  to  form  of  certificate. — The  form  of  a  certificate  may  readily 
be  prepared  by  reference  to  the  foregoing  form  of  affidavit. 

44.  How  identity  of  ward  shown. — The  identity  of  the  ward  as 
the  payee  in  a  bond  may  by  shown  by  affidavit  thus: 

45-48.   Form  of  Affidavit  as  to  Identity. 

State  of  Ohio,  Logan  county,  ss. 

Personally  appeared  before  me,  John  M.  Lawrence,  a  notary 
public  in  and  for  said  county  and  state,  at  my  office  therein, 
James  Smith,  who  being  by  me  duly  sworn  according  to  law, 
deposes  and  says  that  he  is  the  duly  appointed,  qualified,  and 
acting  guardian  of  Leila  L.  Finley,  who  resides  at  No.  17  High 
street,  in  the  city  of  Bellefontaine,  in  said  county;  that  his  au- 


CHAP.  25,  45-48.]       MISCELLANEOUS  MATTERS.  296c 

thority  as  said  guardian  is  in  force,  and  that  said  Leila  L.  Finley 
is  the  identical  person  who  is  the  owner  of  registered  bond 
known  as  one  of  the  consols  of  1907  of  the  United  States,  No. 
960,  for  $1,000,  issued  under  the  acts  of  Congress,  of  July  14, 
1870,  and  January  20,  1871,  registered  in  her  name  on  the  books 
of  the  register's  office,  in  the  department  of  the  treasury  of  the 
United  States,  and  that  she  is  still  the  owner  of  said  bond. 

James  Smith. 

Sworn  to  by  said  James  Smith,  before  me,  and  by  him  sub- 
scribed in  my  presence,  this  day,  at  my  office,  in  Bellefontaine 
aforesaid. 

And  I  certify  that  said  James  Smith  is  personally  well  known 
to  me  to  be  the  identical  person  who  is  said  guardian  above 
named,  and  that  he  is  a  credible  person. 

In  witness  whereof,  I  hereto  subscribe  my  name  and  affix  my 
notarial  seal,  at  my  office,  in  Bellefontaine  aforesaid,  April  20, 
1881. 

[notarial  seal.]  John  M.  Lawrence, 

Notary  Public  in  and  for  said  County. 


APPENDIX. 

(Written  in  1881.) 

CAN  A  MARRIED  WOMAN  BE  A  GUARDIAN? 

("See  paragraphs  35,  36,  chapter  3.) 

1.  As  the  question  whether  a  married  woman1  can  properly  be  ap 
pointed  guardian  in  Ohio  is  an  important  one,  undecided  by  the  courts, 
and  about  which  there  is  some  difference  of  opinion,  it  is  deemed  best 
to  examine  it  as  briefly  as  possible  with  any  degree  of  thoroughness, 
the  intention  being  to  give  all  authorities  found,  for  and  against  the 
writer's  opinion  in  the  matter. 

CERTAIN    GENERAL   PRINCIPLES   STATED. 

2.  It  is  perfectly  well  established  that  the  common  law  of  England, 
in  so  far  as  its  principles  are  not  inconsistent  with  the  genius  and 
Bpirit  of  our  institutions,  our  circumstances,  state  of  society,  and  form 
of  government,  not  opposed  to  the  settled  habits,  customs,  and  policy 
of  the  people  of  this  State,  is  in  full  force  in  Ohio.2 

3.  The  principles  of  the  common  law  which  determine  and  prescribe 
the  status  of  a  married  woman,  are  among  those  which  have  been 
adopted  in  Ohio,  and  by  them  her  legal  condition  is  fixed  here  now, 
except  in  so  far  as  this  condition  has  been  expressly  modified  by  our 
statutes.  Where  these  statutes  are  silent  in  this  respect,  the  common 
law  governs.  This  idea  so  completely  pervades  our  elementary  and 
standai-d  treatises  of  law,  and  our  judicial  decisions,  is  so  generally 
accepted  as  a  matter  of  course  both  in  these  and  elsewhere,  and  is  so 
thoroughly  interwoven  with  the  entire  fabric  of  our  jurisprudence, 
that  it  may  be  called  an  elementary  principle  of  our  theory  of  the 
legal  structure  of  society.8     It  is  not  to  establish  this  principle ;  it  is  to 

(1)  The  unprofessional  reader  should  remember  that  a  widow  has  been,  but  is  not, 
a  married  woman. 

(2)  Lindsley  v.  Coats,  1  O.  243,  215;  Kerwhacker  v.  R.  R.,  3  0. 172, 178;  King  v.  Beck, 
15  O.  559, 563;  Bloom  v.  Richards,  2  0.  S.  387;  R.  R.  v.  Keary,  3  0.  S.  201,  205. 

(3)  "We  have  few  statutory  provisions  on  the  subject,  but,  for  the  most  part,  the 
law  of  husband  and  wife  is  common  law,  and  you  will  find  that  it  savors  of  its  origin 
in  all  its  leadings  features."    Walker's  American  Law,  $  101. 

"The  legal  effects  of  marriage  are  generally  deducible  from  the  common  law,  by 
which  the  husband  and  wife  are  regarded  as  one  person,  and  her  legal  existence  and 
authority  in  a  degree  lost  or  suspended,  during  the  continuance  of  the  matrimonial 
union."    2  Kent's  Com.  129. 

See  also:  Chitty  on  Contracts,  11th  Am.  ed.  231,  n.  k;  Wells  on  Sepaiate  Property 
Mar.  Worn.  83,  and  below,  in  note  1,  next  page;  Reeve's  Dom.  Rel.,  subject  "Baron 
and  Feme. 

(297) 


298  APPENDIX. 

determine  the  effect  of  departures  from  it  by  the  legislature,  that  legal 
decisions  have  chiefly  been  necessary.1 

4.  It  is  considered,  at  common  law,  that  the  legal  existence  of  a  mar- 
ried woman  is  suspended  during  coverture,  or  merged  in  that  of  her 
husband;2  that  she  is  under  his  control,  and  so  presumably  acting  un- 
der his  coercion;3  and  that  therefore  she  is  incapable  of  acting  for  her- 
self, and  that  her  contracts,  in  general,  are  absolutely  void.* 

5.  From  these  general  principles  alone,  the  inference  would  seem  to 
be  unavoidable  and  conclusive  that  if  a  married  woman  can  not  man- 
age her  own  separate  property  and  business  affairs,  except  as  specially 
enabled  to  do  so  by  statute,  she  certainly  can  not,  unless  likewise  au- 
thorized, manage  the  affairs  and  control  the  property  of  those  whose 
interests  are  so  jealously  guarded  as  are  those  of  minor  wards,  and  that, 
in  view  of  the  prevalence  of  these  principles,  the  practice  of  the  courts, 
referred  to  on  page  30  is  well  founded. 

6.  But  it  may  be  said  that,  in  equity,  if  not  also  at  common  law, 
both  in  England  and  in  the  United  States,  a  married  woman  may  be 
a  trustee,  and  therefore  a  guardian,  though  there  are  no  decisions  to 
that  effect  in  Ohio. 

7.  The  following  citations  and  extracts  will  show  that,  while  a  mar- 
ried woman's  right  to  be  a  trustee,  under  important  restrictions,  is 
generally  conceded,  yet  the  weight  of  authority,  to  say  nothing  of  the 
force  of  our  statutes  (see  paragraphs  64-72,  below),  is  clearly  against 
her  right  to  be  a  guardian,  though  this  view  is  not  without  support, 
outside  of  this  state. 

WHAT    STANDARD    LAW    WRITERS    SAT. 

8.  Perry,  in  his  thorough  and  quite  recent  work  on  Trusts,  §§ 
49-51,  says:      "In  equity,  the  absolute  interest  in  the  trust  fund  is 

(i;  See,  among  others,  Rice  v.  Railroad,  32  O.  S.  380;  Alexander  v.  Morgan,  31  O.  S. 
546;  Levi  v.  Earl,  30  O.  S.  147;  Phillips  v.  Graves,  20  O.  S.  371. 

Wells,  in  his  lately  issued  treatise  on  "Separate  Property  of  Married  Women" 
(1878;  says,  p.  73:  "The  statutes  we  are  now  considering  \i.  e.  statutes  as  to  property, 
Ed. J  do  not  intend  to  regulate,  or  modify,  or  restrain,  the  principles  of  the  common 
law  in  this  regard,  but  to  supersede  these  to  the  precise  scope  and  extent  of  the  pro- 
visions therein  enacted." 

(2)  Swazy  v.  Antram,  24  O.  S.  87;  Needles  v.  do.,  7  O.  S.  432;  Alexander  v.  Morgan, 
31  O.  S.  440,  448;  Coke  Litt.  112  a;  Mete,  on  Cont.  82,  83;  2  Kent  Com.  129,  132:  1 
Black.  Com.  442;  2  Story,  Eq.  Jur.,  §1376;  Schouler's  Dom.  Rel.  10;  Bell  v.  Bell,  36 
Ala.  466;  s.  c.  37  Ala.  536;  Burleigh  v.  Coffin,  28  N.  H.  118;  Davis  v,  Burnham,  27  Vt. 
568;  Cartwright  v.  Hollis,  5  Tex.  155:  note  2,  preceding  page. 

(3)  Reeve's  Dom.  Rel.,  98  et  seq.;  Schouler's  Dom.  Rel.  52;  1  Bish.  Mar.  Women, 
$$35,  39;  Bing.  on  Inf.  and  Cov.  *182;  Scarborough  v.  Watkins,  9  B.  Mon.  545;  Phelps 
v.  Phelps,  20  Pick.  559. 

(4)  1  Parson's  on  Contracts,  345,  3  do.  413,  and  cases  cited :  Smith  on  Contracts. 
307-9,  and  cases  cited.    See  also,  paragraphs  8,  10,  11, 16,  25,  31,  37,  38,  below. 


WHAT   STANDARD    LAW    WRITERS    SAY.  299 

vested  in  the  cestui  que  trust,  the  trustee  is  a  mere  instrument,  and  any 
power  or  authority  in  the  trustee  must  have  the  character  of  a  power 
simply  collateral;1  therefore  there  is  nothing,  as  respects  legal 
capacity,  to  prevent  a  married  woman  i'tom  administering  a  discre- 
tionary trust.2  .  .  .  "At  the  same  time  a  husband  must  always 
have  a  large  influence  over  a  feme  covert  trustee  ;  indeed,  as  he  would 
he  answerable  for  her  acts,  and  liable  for  her  breaches  of  trust,  he 
must,  for  his  own  protection,  look  to  the  manner  in  which  she  admin- 
isters the  fund.  And  she  must  join  her  husband  in  suits  in  relation 
to  the  trust  property.3  .  .  .  Another  inconvenience  arises  in 
probate  and  other  trusts,  where  trustees  may  be  required  to  give  bonds 
for  the  faithful  administration  of  the  trust.  A  court  of  equity  may 
require  the  trustee  to  give  security  for  the  property,  even  though  the 
trust  arises  by  operation  of  law.4  A  married  woman  can  enter  into 
contracts  only  in  relation  to  her  sole  and  separate  estate;  and  how  far 
she  can  bind  herself,  or  her  estate,  by  a  bond  to  execute  a  trust  in 
property,  the  beneficial  interests  of  which  belong  to  another,  would 
always  he  a  perplexing  question,  although  the  sureties  on  such  a  bond 
might  he  liable. 

9.  "  Subject  to  these  inconveniences,  a  married  woman  can  always  be 
a  trustee;  and  she  may  even  be  a  trustee  for  her  husband,5 as  well  as 
her  husband  for  her,6  and  the  courts  will  find  means  to  enforce  the 
trusts;  hut  they  will  not  a,  omen,  to  such  offices,  nor  will  they  ap- 
point t/um  to  be  guardians  of  minors.1  A  woman,  on  the  conti'ary,  will  be 
removed  from  the  office,  if  she  is  appointed  while  sole  and  afterward 
marries."  8 

10.  Redfield's  Law  of  Wills  (3d  vol.  p.  569-70,  published  in  1877) 
contains  matter  of  similar  tenor,  of  which  the  following  is  the  essen- 
tial part:  "  There  seems  to  be  no  invincible  obstacle  against  a  feme 
covert  being  made  a  trustee  ;9  but,  there  being  more  inconvenience  in 


(1)  Citing  Smith  v.  Smith,  21  Beav.  385;  Drummond  v.  Tracy,  1  Johns.  (N.  Y.)  608; 
Kingham  v.  Lee,  15  Sim.  401;  People  v.  Wehster,  10  Wend.  (N.  Y.)  551. 

(2)  Same  cases. 

(3)  Still  v.  Ruby,  35  Penn.  St.  373. 

(4)  Clark  v.  Saxon,  1  Hill  Ch.  69. 

(5)  Livingston  v.  Livingston,  2  Johns.  Ch.  541. 

(6)  Bennett  v.  Davis,  2  P.  Wms.  316;  Shirley  v.  do,  9  Paige  363;  Jamison  v.  Brady,  6 
S.  &  R.  467  {fit  al.) 

(7)  Re  Kaye,  L.  R.  Ch.  387. 

(8)  Lake  v.  De  Lambert,  4  Ves.  595.  The  trustee  in  this  case  had  married  a  foreigner, 
but  Lord  Chancellor  Loughborough  simply  remarked  that '  it  was  very  inconven- 
ient for  a  married  woman  to  be  a  trustee.'  " 

(9)  Citing,  at  close  of  paragraph,  to  same  proposition,  He  Campbell's  Trusts,  31 
Beav.  176. 


300  APPENDIX. 

callir,^  them  to  account  before  the  proper  tribunals,  there  will  always 
be  more  or  less  objection  against  the  selection  of  married  women  for 
the  office  of  trustee.  .  .  .  And  as  the  husband  is,  from  the  very 
necessity  of  the  relation,  always  responsible  for  the  acts  of  his  wife, 
even  for  her  breaches  of  trust,  he  will  naturally  exercise  a  considerable 
control  over  her  acts;  and  indeed  he  must,  for  the  protection  of  his 
own  interests,  constantly  exercise  a  watchful  care  over  her  conduct  of 
ili<-  trust  This  will,  of  necessity,  to  a  certain  extent,  combine  the 
agency  of  another  with  that  of  the  trustee,  whenever  the  office  is  de- 
volved  up. hi  a  married  woman.  (Citing  Kingham  v.  Lee,  15  Sim.  396, 
401  ;  Smith  ■.  Smith,  21  Beav.  385;  Drummond  v.  Tracy,  Johns.  Eng. 
Ch.  6<>s. )  In  short,  it  seems  to  be  settled,  that  whenever  the  wife 
holds  the  office  of  trustee,  the  husband  must  act  jointly  with  her.  The 
money  or  property,  constituting  the  trust  fund,  can  only  properly  be 
delivered  upon  the  joint  receipt  of  the  trustee  and  her  husband.1 
.  .  .  Si.  that  we  must  conclude  that  although  there  is  no  positive 
incapacity  in  the  case  of  a  married  woman  for  becoming  trustee,  there 
are,  under  the  present  economy  of  the  law  of  trusts  and  its  adminis- 
tration in  the  courts  of  equity,  numerous  inconveniences  which  induce 
the  courts  to  prefer  that  the  administration  of  trusts  should  not  be 
embarrassed  by  any  such  needless  hindrances." 

11.  Hill,  in  his  treatise  on  Trustees,  page  48,  says :  "Thus  femes 
covert,  infants,  idiots,  and  lunatics,  and  other  persons  who  are  non  sui 
juris,  may  become  trustees,  subject  of  course  to  their  legal  incapacity  to 
deal  with  the  estate  vested  in  them;  wherever  that  incapacity  has  not 
been  relieved  by  the  legislature  for  that  purpose." 2  But  on  page  41  he 
says  that  he  uses  the  word  trustee,  in  that  treatise,  as  excluding 
guardians  and  other  fiduciary  officers  there  mentioned. 

12.  Bishop,  in  his  treatise  on  Marriage  and  Divorce,  §  527,  indefi- 
nitely says :  "  The  father  is,  at  common  law,  in  some  sense,  the 
guardian  of  his  minor  children,  though  in  precisely  what  sense  the 
books  do  not  seem  to  be  agreed.3  "When  he  dies  the  guardianship  de- 
volves, not  to  its  full  extent,  on  the  mother  ;*    but  partly  so,  and  what- 

(1)  Drummond  v.  Tracy.  Johns.  Eng.  Ch.,  611. 

(2)  Citing,  Clarke  v.  Saxon,  1  Hill,  ch.  69;  Bradish  v.  Gibbs,  3  J.  C.  R.  523;  Living- 
stone v.  Livingstone.  2  J.  C.  R.  541;  Dundas  v.  Biddle,  2  Barr,  160;  Eyrick  v.  Hetrick, 
1  Harris  (Penn.),  494:  or,  one  found  an  habitual  drunkard,  Webb  v.  Deitrich,  7  W. 
&  S.  401.    So  a  nun  may  be  a  trustee  in  Maryland,  Smith  v.  Young,  5  Gill.  197. 

(3)  Macpherson  on  Infants,  51-62;  Miles  v.  Boyden,  3  Pick.  213;  Kenningham  v. 
McLaughlin,  3  T.  B.  Mon.,  30;  Forsyth  v.  Kreakbaum,  7  T.  B.  Mon.  93;  Isaacs  v. 
Boyd,  5  Port.,  388;  Wilson  v.  Wright,  Dudley  (Ga.),  102;  Grifflng  v.  Hopkins,  Walk 
(Mich.),  49;  Jackson  v.  Combs,  7  Cow.  36. 

(4)  Macpherson  on  Infants,  60-65;  Eyre  v.  Shaftsbury,  2  P.  Wms.  103, 116;  Roach  v. 
Garvan,  1  Ves.  sen.  157,  158;  Mendes  v.  Mendes,  3  Atk.  619,624,  lVes.  91;  Dedham 
v.  X.itich,  16  Mass.  135,  140;  Whipple  v.  Dow,   2  Mass.  415;  Heyward  v.  Cuthbert,  4 


WHAT    STANDARD    LAW    WRITERS   SAY.  3,jl 

evei  guardianship  is  hers,  it  has  been  held,  perhaps  not  justly,  con- 
tinues in  her,  though  she  is  married  a  second  time.1  Concerning  the 
latter  point,  a  difficulty  arises  from  the  fact,  well  settled  in  law,  that 
the  second  husband  is  not  under  obligation  to  support  the  wife's  child- 
ren by  a  former  husband,  while  also  he  is  entitled  neither  to  their 
services  nor  their  society.  And  indeed  other  authority  recognizes  the 
doctrine  that  the  second  marriage  deprives,  to  some  extent  at  least, 
the  mother  o*  her  right  of  custody  over  her  children  by  the  former 
marriage."  " 

13.  Also,  in  vol.  2,  §  527,  Married  Women:  "  '  On  the  marriage  of  a 
feme  guardian,  the  court  of  chancery  will  refer  it  to  a  master  to  ap- 
point a  guardian,  not  for  the  purpose  of  removing  her,  but  to  ascertain 
what  ought  to  be  done  under  the  altered  state  of  circumstances.'3  In 
our  own  country,  a  statute  sometimes  provides  that  the  guardianship 
shall  end  on  the  marriage,4  but  otherwise  this  does  not  terminate  the 
guardianship  ;  5  at  least,  not  in  all  the  States,  perhaps  it  does  in  some."* 

14.  In  McPherson  on  Infancy,  111,  and  Reeve's  Domestic  Relations, 
121,  both  works  now  quite  old,  it  is  stated  that  a  married  woman  may 
be  guardian  ;  each  of  these  writers  citing  only  Wallis  v.  Campbell,  13 
Ves.,  517.  But  an  examination  of  this  case  (see  pars.  27-30)  will  show 
that  it  is  an  exceptional  one,  the  ward  being  an  illegitimate  child  ;T  and 
that  for  other  reasons  it  is  not  a  sufficient  basis  for  so  general  and  im- 
portant a  principle  as  that  derived  from  it ;  and  this  is  especially  so  in 
view  of  the  opposing  decision  and  general  practice  given  in  para- 
graph 23. 

15.  In  4  Bacon's  Abridgment,  548,  it  is  stated  that  "  Fixed  habits  of 
intemperance  constitute  a  sufficient  reason  for  the  removal  of  a  guar- 
dian." Also,  that  it  "  is  improper  that  the  wife  of  a  man  addicted  to 
such  habits  should  be  guardian,  she  being  subject  to  his  control." 
(Citing  no  authorities  of  any  kind.) 

16.  Tyler  on  Infancy  and  Coverture,  257,  states  that  "  On  the  mar- 
riage of  the  mother  or  other  female  who  has  been  appointed  guardian 

Des.  445;  Tilton  v.  Russell,  11  Ala.  497;  Jones  v.  Tevis,  4  Litt.  25;  Osborn  v.  Allen,  2 
Dutcher,  388;  Curtis  v.  Curtis,  5  Gray,  535. 

(1)  Citing  Villareal  v.  Mellish,  2  Swanst.  533;  Mellish  v.  De  Costa,  2  Atk.  14;  Arm- 
strong v.  Stone,  9  Grat.  102;  State  v.  Scott,  10  Fost.  (N.  H.),  274. 

(2)  Citing  State  v.  Scott,  10  Fost.  (N.  H.),  274. 

(3)  1  Bright  Hus.  &  W.  17,  referring  to  Jones  v.  Powell,  9  Beav.  345;  In  re  Gornall, 
1  Beav.  347. 

(4)  Field  v.  Torrey,  7  Vt.  372. 

(5)  Martin  v.  Foster,  38  Ala.  368. 

(6)  See  2  Kent  Com.  225,  226,  and  notes. 

(7)  Illegitimate  children  are  not  the  subjects  of  tutelage  at  common  law.  2  Stephen's 
Com.  320. 


302  APPENDIX 

to  an  infant,  it  is  a  matter  of  course  to  appoint  a  new  guardian,  for  she 
is  no  longer  sui  juris,  and  has  become  liable  to  be  controlled  by  her 
husband;  but  she  is  at  liberty  to  go  before  the  court  and  propose  her- 
self as  guardian."  (Citing  Anonymous,  8  Sim.  R.  346;  Lee  v.  Govvalt, 
1  Bra.  R.  347.') 

17.  Kent's  Commentaries,  vol.  2,  p.  226,  contains  only  the  following 
note  on  this  question:  "When  &  feme  sole,  appointed  guardian  to  her 
infant,  married,  the  court  directed  an  inquiry  whether  she  had  not 
thereby  deprived  herself  of  the  guardianship,  as  she  was  no  longer 
sui  juris ;  though  it  seems  she  might  be  reappointed  under  new  sure- 
ties."    Re  Gornall,  1  Beav.  347."     (See  pars.  24-26.) 

18.  See  also  note  1,  page  24,  ante. 

19.  Schouler's  standard  and  quite  recent  work  on  "  Domestic  Rela- 
tions," (1st  Ed.,  1S70;  2d  Ed.,  1874)  contains  the  following  as  to  this 
question : 

20.  "  As  concerns  the  right  of  a  married  woman  to  be  appointed 
guardian  there  is  doubt  and  uncertainty.  The  dicta  are  apt  to  go  one 
way  and  the  decision  another;  doubtless  out  of  judicial  deference  to 
the  sex.  Some  hold  that  married  women  are  at  common  law  capable 
of  becoming  guardians;  but  they  draw  their  conclusions  rather  from 
the  analogies  of  administration  than  from  positive  authority  in  their 
favor.  When  it  is  considered  that  chancery  and  probate  guardians 
are  a  modern  creation,  the  ancient  cases,  from  such  species  of  guar- 
dianship as  are  now  extinct,  are  hardly  worth  looking  after.  It  is  true 
there  are  several  cases  which  sustain  the  acts  of  married  women  while 
acting  as  guardians,  or  rather  quasi  guardians;  at  the  same  time  clear 
precedents  for  their  actual  appointment  are  wanting.2  It  is  lately 
held  in  the  English  Chancery  Court,  that,  while  a  woman  may  be  co- 
guardian  with  a  man,  her  sole  appointment  is  improper.3  In  spite  of 
the  liberal  tendency  of  the  age,  we  conclude  that  while  such  guar- 
dianship would  not  be  deemed  absolutely  void,  and  is  in  fact  some- 
times sanctioned  without  investigation,  public  policy  is  decidedly 
against  the  appointment.      Not  the  least  important  objection  is  the 

(1)  This  case  of  Lee  v.  Gowalt  was  diligently  searched  for  in  every  series  of  reports, 
English  and  American,  but  could  not  be  found.  This  citation  is  believed  to  be  a 
typographical  error  for  "  In  re  Gornall,  1  Bea.  (Beavan)  347."  See  par.  24-26;  For 
8  Sim.  R.  346,  see  par.  23—  Ed. 

(2)  (Wallis  v.  Campbell,  13  Ves.  517.  This  was  the  case  of  an  illegitimate  child.  As 
cited  in  Macphers.  Inf.  Ill,  it  might  be  considered  authority  for  the  appointment  of 
married  women  as  guardians.) 

(3)  (In  Re  Kaye,  L.  R.  1  Ch.  3S7. 

[Macphers.  Inf.  Ill;  Anon.,  8  Sim.  346;  Gornall's  case,  1  Beav.  347;  Jarrett  v. 
State,  5  Gill  &  Johns.  27 ;  Palmer  v.  Oakley,  2  Doug.  433 ;  Farrer  v.  ClarKe,  29  Miss. 
195 ;  Holley  v.  Chamberlain,  1  Redf.  333  ;  Kettletas  v.  Gardner,  1  Paige,  4S8  ;  Ex  parte 
Maxwell,  19  Ind.  88,  are  also  referred  to.    See  these  cases  below.— Ed.] 


CASES    EXAMINED.  P,Q3 

inability  of  married  women  to  furnish  proper  recognizance,  and  to 
manage  trust  property  without  constantly  encountering  legal  obstacles, 
all  the  more  troublesome  from  the  present  uncertainty  of  the  law  of 
husband  and  wife.  Hence  the  English  rule  has  been,  on  the  marriage 
of  a  female  guardian,  to  choose  another  in  her  stead,  on  the  ground 
that  she  is  no  longer  sui  juris,  and  lias  become  liable  to  the  control  of 
her  husband;  while  she  is  said  to  be  still  at  liberty  to  go  before  the 
master  to  propose  herself  as  her  own  successor."  (Citations  not 
given.) 

CASES    EXAMINED. 

21.  References  to  the  following  English  and  American  cases,  bearing 
directly  on  the  matter  under  consideration,  have  been  found,  and  an 
examination  of  them  will  show,  among  other  things,  (1.)  That  the  dis- 
inclination of  the  courts  to  deprive  a  mother  of  the  custody  of  her 
child  is  a  strong  inducement  in  the  minds  of  the  judges  to  make  them 
construe  the  law,  when  possible,  in  favor  of  the  mother.  (2.)  That  the 
statutes,  in  some  states,  either  directly  authorize 1  the  appointment  of  a 
married  woman  as  guardian,  or  do  not,  either  by  implication  or  other- 
wise, forbid  it;  but  (3.)  That  even  in  these  states  generally,  and  by 
the  chancery  laws  of  England,  if  she  can  act  in  that  capacity  at  all. 
her  husband  must  be  joined  with  her,  if  a  fit  person,  thereby  virtually 
making  him  the  guardian;  and  that  if  he  is  not  a  fit  person  to  so  act, 
she,  can  not  be  appointed.  (4.)  That  such  appointments,  even  in  most 
cases  where  permitted,  are  generally  rather  excused  than  sanctioned 
as  proper,  and  that  they  are  voidable,  rather  than  void.  (5.)  That 
generally  they  are  contrary  to  the  policy  of  the  law,  and  should  not 
be  made. 

22.  If  we  consider  these  points  with  reference  to  Ohio,  we  may  say 
(1.)  That  the  custody  of  the  person  and  the  control  of  the  education  of 
a  child  can  not  be  taken  from  its  mother,  if  she  be  a  suitable  person 
and  the  father  be  dead;2  and  that,  therefore,  in  view  of  the  further 
fact  that  there  may  here  be  one  guardian  for  the  estate  only,  and  a 
different  one  for  the  person,34he  inducement  mentioned  above  does  not 
exist  here;  (2.)  That,  since  the  husband  would  really  be  the  guardian, 
he  might  very  well,  if  a  suitable  person,  be  appointed  directly,  instead 
of  indirectly.  (3.)  That  our  statutes  not  only  do  not  authorize,  but  by 
implication  forbid,  a   married   woman's  appointment  to  that  trust.  ' 

(1)  See  paragraph  05,  and  references  there  found. 

(2)  See  paragraph  2,  chapter  5. 

(3)  See  paragraphs  17-18,  chapter  3. 

It  should  be  borne  in  mind  that  this  is  not  the  case  in  all  states,  and  that  gene- 
i ally  the  guardian's  office  entitles  him  to  the  control  of  both  the  person  and  the 
estate  of  the  ward,  to  the  exclusion  of  all  other  persons. 

(4)  See  paragraph  04,  below,  ttseq. 


304  APPENDIX. 

It  must  also  be  borne  in  mind  that  the  entire  system  of  chancery 
guardianship  in  England  has  sprung  up  and  been  matured  there  by 
the  courts  since  the  founding  of  the  colonies,  through  which  we  have 
inherited  the  common  law,  and  largely  so  since  the  independence  of 
these  colonies  was  declared;  and  that,  therefore,  it  is  a  matter  of  some 
doubt  to  what  extent  the  rules  of  English  chancery  guardianship 
would  apply  to  Ohio,  even  if  our  statutes  cast  no  light  on  the  question 
under  consideration.1 

23.  In  Wickley  v.  Whaley  (reported  in  8  Simmons,  346,  as  anon- 
ymous), the  vice-chancellor  held  that  it  was  quite  of  course,  where  a 
lady  who  had  been  appointed  a  guardian  married,  to  appoint  a  new 
guardian. 

24.  In  Be  Gornall,  1  Beavan,  347.  In  1830,  Elizabeth  Gornall,  an  un- 
married woman,  was  appointed  guardian  of  her  minor  child  during  his 
minority,  or  till  further  order  of  court.  In  1832,  the  mother 
married,  and  a  petition  was  presented  in  behalf  of  the  infant,  then 
twelve  years  old,  praying  for  a  reference  to  a  master  to  approve  of  a 
proper  person  to  be  his  guardian,  and  a  proper  amount  of  maintenance. 

25.  As  against  the  petition,  it  was  argued  that  the  reference  was 
unnecessary,  the  mother  being  already  guardian ;  that  a  mother  has 
a  right  to  the  custody  of  the  person  of  her  children,2  of  which  she 
should  not  be  deprived;  that  the  recognizances  were  still  subsisting, 
and  that  it  would  save  expense  not  to  disturb  them.  Held,  "  I  con- 
ceive that  it  is  the  usual  practice  to  make  such  a  reference  on  the 
marriage  of  a  female  guardian  ;  it  is  not,  as  has  been  suggested  in  ar- 
gument, that  this  lady,  by  reason  of  her  marriage,  is  to  be  deprived  of 
her  child.  If  the  order  was  to  that  effect,  I  should  here  take  a  long 
time  before  I  should  make  it.  Here  is  an  unmarried  lady  appointed 
by  the  court  to  be  the  guardian  of  her  child:  she  is  made  so  under  the 
circumstances  under  which  she  is  then  placed — being  a  person  sui 
juris,  acting  for  herself  in  every  way  according  to  her  own  judgment 
and  discretion.  In  that  state  of  things  she  marries,  and  thereby  loses 
that  independent  judgment  and  discretion,  and  becomes  liable  to  be 
controlled  by  her  husband.  Is  it  not  fit  that  the  matter  should  be  in- 
vestigated and  inquired  into?  I  think  the  usual  form  of  doing  it  is 
by  referring  it  to  a  master  to  approve  of  a  guardian :  under  the  order 
the  mother  will  be  at  liberty  to  propose  herself,  and  it  is  to  be  hoped 
that  her  application  will  be  successful ;  it  may  happen  that  she  and 
her  husband  will  be  found  to  be  the  most  proper  persons  to  have  the 

(1)  See  Schouler's  Dom.  Rel.  39-3-300.    As  to  statutes,  see  pars.  64-71,  below. 

"  But  the  proceeding  now  under  consideration  [i.e.  an  administrator's  sale  of  land 
to  pay  debts— Ed.]  is  uot  a  chancery  proceeding.  It  is  a  proceeding  in  a  court  of 
probate,  under  the  statute  law  of  the  state.    .    .    ."    Robb  v.  Irwin,  15  O.  689,  700. 

(2)  Citing  Villareal  v.  Mellisb,,  2  Swanst.  53G. 


CASES    IN    ENGLISH    CHANCERY.  305 

care  and  custody  of  the  infant,  and  that  she  may  be  appointed  guar- 
dian. I  can  not,  however,  interfere  in  that,  as  it  will  be  a  matter  for 
the  consideration  of  the  master.  I  believe  this  to  be  the  usual  order; 
and  I  take  it  to  be  according  to  the  ordinary  rules  of  practice  of  this 
court,  under  the  circumstances  which  have  occurred  here,  to  make 
such  a  reference.  A  n  inquiry  is  necessary,  for  the  purpose  of  ascertain- 
ing whether,  by  the  act  of  marriage,  the  guardian  has  not  placed  her- 
self in  circumstances  which  may  not  permit  her  to  exercise  that  proper 
discretion  which  ought  to  be  exercised  for  the  benefit  of  the  child 
The  next  friend  of  the  child  has  performed  an  act  of  duty  to  this 
court  in   informing  it  of  the  guardian's  marriage. 

26.  "  As  to  the  recognizances,  I  can  make  no  other  order  than  that 
which  I  understand  to  be  the  ordinary  and  usual  order  to  be  made  in 
such  cases.  It  does  not  follow  that  the  persons  who  have  entered  into 
the  recognizances  for  the  mother  of  the  infant  would  be  willing  to  be 
sureties  for  the  husband." 

27.  Wallis  v.  Campbell,  13  Vesey,  517  (Apr.  16,  1807).  This  entire 
case  as  reported,  including  syllabus,  statement  of  facts,  chancellor's 
decisions,  and  all,  is  as  follows: 

28.  [Syllabus]  "A  married  woman  appointed  guardian  of  an  illegiti- 
mate child ;   and  payment  ordered  to  her  upon  her  separate  receipt." 

29.  [Statement  of  facts]  "A  married  woman  being  under  the  Mas- 
ter's Report,  appointed  the  guardian  of  an  illegitimate  child;  a  diffi- 
culty arose  in  the  Register's  office  as  to  drawing  up  an  order  for 
payment  of  money  to  her,  without  joining  her  husband.  It  was 
therefore  mentioned  to  the  Court  by  Mr.  Bell." 

30.  [Decision]  "  The  Lord  Chancellor  [Eldon]  made  an  order  for  pay- 
ment to  her,  upon  her  separate  receipt,  for  the  purposes  of  the  order."1 

31.  Kettletas  v.  Gardner,  1  Paige  (N.  Y.  1829)  488.  In  January 
1818,  James  and  C.  G.,  his  wife,  were  appointed  guardians  of  M. 
and  John  G.,  two  minors.  J.  G.  was  removed  on  account  of  his 
intemperance,  on  complaint  being  made  against  him.  The  other 
pertinent  facts  sufficiently  appear  in  the  decision  of  the  Chancellor 
who  says:  "The  opinion  of  the  master,  that  the  guardian  who  has 
become  so  intemperate  as  to  be  occasionally  insane,  is  unfit  for 
a  guardian  without  evidence  of  a  thorough  reformation  of  his  hab- 
its, is  perfectly  correct.  ...  He  was  himself  a  proper  subject 
for  guardianship,  and  continues  so,  unless  he  abandoned  those  habits. 
The  court  has  no  assurance  that  there  is  in  him  any  permanent  refor- 
mation. He  has  therefore  forfeited  the  guardianship,  and  must  be 
removed.  If  it  is  improper  for  him  to  have  the  management  of  the 
estate,  it  is  equally  improper  for  his  wife,  who  is  subject  to  his  eontroL 

(1)  See  par.  14,  p.  301. 


30G  APPENDIX. 

The  guardianship  of  the  person  of  one  of  the  infants  belongs  to  the 
husband,  and  Mrs.  G,  is  not  a  proper  guardian  of  the  person  of  the 
other.     The  whole  guardianship  must  therefore  be  changed." 

32.  Halley  v.  Chamberlain,  1  Eedf.  (N.  Y.  I860)  333.  The  second  and 
last  paragraph  of  the  syllabus  in  this  case  is  that  "  The  policy  of  the 
law  is  against  the  appointment  of  married  women  as  guardians  of  the 
estates  of  minors.  And  where  the  mother  of  the  minor  is  living  with  a 
second  husband,  though  otherwise  competent,  she  will  not  be  ap- 
pointed guardian  of  his  estate."1 

33.  In  deciding  this  case,  the  surrogate  holds  that,  as  the  statute  (3 
N.  Y.  Rev.  Stat.  159,  §  32)  forbids  the  granting  of  letters  of  administra- 
tion to  a  married  woman,  the  same  reasoning  would  forbid  appointing 
her  guardian  of  the  estate  of  a  minor.  Also,  that  as  the  law  gives  the 
Surrogate  the  power  to  revoke  the  letters2  of  a  woman  who  marries,  it 
means  that,  in  connection  with  other  provisions,  although  she  is  not 
incompetent  for  other  reason,  yet  marriage  is  of  itself  a  reason  for 
removal.  .  .  .  He  also  says  :  "Almost  all  cases  reported  are  where 
there  was  a  contest  for  the  guardianship  of  the  person  of  the  child.  The 
question  is  but  little  discussed  as  to  the  guardianship  of  the  estate." 

34.  People  v.  Webster,  10  Wend.  554.  Under  a  general  provision  of 
the  N.  Y.  Rev.  Stat.  600,  §§  9,  10,  declaring  that  the  directors  or  mana- 
gers of  any  corporation  whose  charter  expires  or  is  dissolved,  shall 
become  trustees  of  the  creditors  and  stockholders  of  said  corporation. 
An  incorporated  society  for  the  relief  of  indigent  women  and  children 
expired.  Some  of  its  directors,  at  this  time,  were  married  women.  It 
was  held  that  such  trustees  can  not  be  admitted  to  defend  an  action  of 
ejectment  in  the  place  of  a  tenant,  without  their  husbands  being  joined 

35.  Delamater  v.  Walmsley,  15  Abb.  Pr.  (N.  Y. ;  O.  S.)  323.  "Section 
9  of  chapter  157  of  Laws  of  18G0  (repealed  by  the  Laws  of  1862 
ch.  172),  which  constituted  every  married  woman  joint  guardian  of 
her  children  with  her  husband,  related  to  married  women  oidy  ;  and 
they  became,  not  the  sole  guardians,  but  only  jointly  with  their  hus- 
bands.    To  such  as  had  no  husbands  the  act  did  not  apply." 

36.  Swortwont  v.  Swortwont,  2  Redfield  (N.  Y.  1871),  52.  The  sur- 
rogate's decision  is  almost  all  quoted,  because,  from  it  the  pertinent 
facts  and  statutes  can  be  sufficiently  learned. 

37.  "At  common  law,  an  unmarried  female,  otherwise  competent, 
may  make  as  valid  contract  as  a  male,  and  could  in  like  manner  be 

(1)  When  it  is  remembered  that  in  N.  Y.  in  the  absence  of  appointment  by  the 
surrogate,  a  mother  was,  at  that  time,  entitled  to  manage  the  estate  of  her  c  hild  ai 
guardian  in  socage,  a  right  she  does  not  have  in  Ohio,  the  reasons  for  holding  that, 
in  this  state,  a  married  woman  can  not  be  guardian  of  the  estate  of  a  minor,  are 
much  stronger  than  in  N.  Y. 

(2)  But  compare  paragraph  70,  below,  with  this. 


CASES    IN    ENGLISH    CHANCERY.  o(J7 

guardian  of  minors,  because  she  was  free  to  act  as  a  male,  but  upon  hei 
marriage  she  ceased  to  be  the  free  agent  she  was  before;  and  she  in 
law  could  make  no  contract  whatever,  without  the  consent  or  sanction 
of  her  husband — she  was  under  his  control.  This  rule  was  in  time 
somewhat  modified,  so  that,  after  marriage,  with  the  consent  of  her 
husband,  she  might  be  appointed  administratrix,  and  her  husband  was 
liable  for  her  acts;  but  this  rule  was  never  made  applicable  to  guar- 
dians. (Woodruff  v.  Cox,  2  Bradf.  153  ;  Bunce  v.  Vander  Grift,  8  Paige,  37. ) 

38.  "Therefore,  when  even  a  mother  was  guardian  of  her  children, 
and  re-married,  her  guardianship  ceased,  because  she  was  no  longer 
competent  to  make  a  contract,  and  was  under  the  influence  of  her  new 
husband,  and  perhaps  another  reason  may  be  added — that  of  the 
probability  of  other  children,  and  the  partiality  that  might  be  shown 
by  the  stepfather.  There  are  other  reasons,  no  doubt,  within  the  ob- 
servation of  all,  why  the  guardian  in  such  new  relation  should  be 
removed.  (Lee  v.  Gowatt,  1  Bradf.  346  j1  2  Bradf.  155;  Xewhouse  v. 
Gale,  1  Redfield,  217.) 

39.  "  Whatever  may  have  been  formerly  the  power  of  this  Court  to 
remove  for  this  cause  (marriage),  the  statute  of  1837  invested  it  with 
such  power  (Laws  of  1837,  p.  530,  §34). 

40.  "  There  is  no  application  before  me  for  the  appointment  of  a  new 
guardian  in  this  matter,  but  it  is  strenuously  insisted  by  counsel  for 
the  guardian,  that  the  laws  of  1807  authorize  her  to  be  continued  as 
guardian,  or  rather  does  continue  her  such  guardian. 

41.  "I  do  not  agree  with  the  counsel.  The  statute  authorizes  the 
surrogate  to  appoint  a  married  woman  executrix,  administratrix,  and 
guardian,  and  married  women  are  declared  therein  to  be  capable  to 
act  as  such,  as  though  they  were  single  women,  and  their  bonds  given 
on  the  granting  of  such  letters  are  to  have  the  same  force  and  effect 
as  though  they  were  not  married  (2  Laws  1867.  p.  783,  §  2). 

42.  "This  act  is  one  simply  permissive;  it  makes  a  married  woman 
competent.  It  removes  her  common  law  disability,  and  declares  her 
capable  to  act.  She  may  give  a  bond  the  same  as  if  she  were  sole, 
which  shall  be  legal  and  valid  as  if  single";  but  the  statute  does  not 
continue  the  trustee,  and  the  question  involved  in  this  matter  is  un- 
touched.    .     .     . 

43.  "Let  an  order  be  entered  removing  II.  E.  S.,  formerly  S.,  as 
guardian  of  her  children,  by  H.  B.  S.,  deceased,  upon  the  appointment 
of  a  new  guardian  for  said  children,  and  let  her  account  to  such  new 
guardian."     (Order  accordingly.) 

44.  Newhouse  v.  Gale,  1  Redfield  (N.  Y.,  1853),  217.  (Part  of  sylla- 
bus.)   "  The  policy  of  the  statute  is  against  the  appointment  of  married 

(1)  See  note  1,  par.  16. 


308  APPENDIX. 

women  as  administratrices  or  guardians,  and  of  their  continuation  in 
office  after  their  marriage  subsequent  to  the  issuing  of  the  letters." 

45.  Field  v.  Torrey,  7  Vt,  372.  This  case  discusses  at  considerable 
length  the  common  doctrines  and  the  Vermont  statutes  relating  to 
the  question;  but  it  is  only  necessary  to  say  that  a  part  of  its  brief 
syllabus  is  to  the  effect  that  when  an  unmarried  woman  guardian 
marries,  such  marriage  extinguishes  her  right  under  such  appointment. 

4C>.  Ex  parte  Maxwell,  19  hid.  88.  A  married  woman  applied  to  the 
lower  court  to  be  appointed  guardian  of  her  two  minor  children  by  a 
former  marriage,  but  that  court  refused  to  appoint  her. 

47.  On  appeal  to  the  supreme  court,  Perkins,  J.,  held  that  "by  the 
common  law,  as  administered  by  the  chancery  and  ecclesiastical 
courts,  a  married  woman  is  not  disabled  to  be  an  executrix,  adminis- 
tratrix, or  guardian.1  .  .  .  Our  statute  touching  the  capacity  of  a 
married  woman  to  act  as  executrix  is  simply  declaratory  of  the  com- 
mon law.2  Touching  guardianship,  our  statute  specifies  no  disabilities. 
Does  it  not.  then,  by  the  ordinary  rules  of  construction,  leave  the 
question  of  competency  to  the  common  law  ?  That  law  requires,  in 
the  judgment  of  the  court,  a  suitable  person.  It  will  occasionally  hap- 
pen, as  in  this  case,  that  the  mother,  a  married  woman,  will  not  only 
be  a  suitable,  but  will,  in  fact,  be  peculiarly  a  proper  person  to  be  the 
guardian  of  her  own  children.  But  she  should  not  be  appointed, 
unless  her  husband  is  also  a  suitable  person  to  act  as  guardian;  because 
he  may  be  expected  to  control,  in  a  great  measure,  the  action  of  hi? 
wife.     .     .     ."     (See  last  two  paragraphs  of  note  1,  this  page.) 

48.  In  Hardin  v.  Helton,  50  Ind.  319,  this  being  a  suit  on  a  promis- 
sory note,  it  was  incidentally  held,  citing  the  case  last  above,  thai 
upon  the  marriage  of  a  female  guardian,  it  is  not  necessary  that  he; 
husband  should  file  in  court  his  written  consent  to  her  continuing  sucl 
guardian,  as  in  the  case  of  the  marriage  of  an  executrix  or  adminis 
tratrix.     .     .     ." 


(1)  Citing,  to  sustain  this,  2  Story's  Eq.,  $51337-9;  2  Shars.-Black  Com.  503,  and 
note  15;  Reeve's  Dom.  Rel.  122;  New  Am.  Encyclopedia,  art.  Guardian;  1  Williams 
on  Ex.  360. 

But  an  examination  of  these  citations  shows  that  none  of  them  sustain  this  propo- 
sition as  to  guardians,  except  Reeve's  Dom.  Rel..  p.  121  (concerning  which,  see  para- 
graph 14  of  this  appendix),  and  the  Encyclopedia,  which  is  not  a  legal  authority, 
and  which  does  not  pretend  to  sustain  its  position  by  any  citations  whatever.  What 
weight,  outside  of  its  own  state,  should  be  given  to  this  decision,  resting  on  such  a 
foundation,  each  reader  may  estimate  for  himself. 

It  might  also  be  remarked,  that  chancery  and  ecclesiastical  courts  do  not  administer 
common  law. 

(2)  This  statute  is  to  the  effect  that  no  married  woman  shall  be  entitled  to  letters 
testamentary,  unless  her  husband  file  his  consent  thereto  in  writing  with  the  proper 
clerk,  which  consent  shall  make  him,  jointly  with  her,  responsible  for  her  arts  in 
the  premises.  2  R.  S.  1876,  491,  $2. 


AMERICAN    CASES.  30U 

49.  Parmer  v.  Oakley,  2  Doug.  (Mich.)  433.  This  case  was  ably  pre 
sented  to  the  court,  and  was  fully  considered.  Though  it  involved  mat- 
ters not  pertinent  to  the  question  here  under  consideration,  the  follow 
ing  paragraphs  of  its  syllabus  are  pertinent. 

50.  "  It  is  not  necessary  that  the  guardianship  bond,  required  by  R. 
S.,  1827,  p.  59,  §5,  should  be  executed  by  the  guardian;  it  is  sufficient  if 
a  bond,  with  sufficient  securities,  be  given. 

51.  "  It  seems  that  where  a  married  woman,  appointed  guardian  unites 
with  her  sureties  in  the  guardianship  bond,  the  bond  will  be  good,  not- 
withstanding her  incompetency  to  execute  it. 

52.  "  It  seems  that  the  decree  of  a  probate  court,  appointing  a  feme 
covert  guardian,  who  was  incompetent  to  execute  the  trust  on  account 
of  coverture,  would  bind  until  reversed;  and  the  acts  of  such  a  guard- 
ian would  be  valid. 

53.  "  Both  at  the  common  law,  and  under  the  statute  of  1827  (R.  S. 
1827,  p.  57),  a  married  woman  is  competent  to  be  a  guardian,  with  the 
assent  of  her  husband ;  but  not  without  such  assent. 

54.  "It  seems  that  letters  of  guardianship  granted  to  a  wife,  without 
the  husband's  assent,  would  be  voidable  merely,  not  void. 

55.  "  The  husband's  assent  may  be  presumed  from  his  joining  his 
wife  in  the  bond  which  R.  S.  1827,  p.  88,  §2  requires  a  guardian  to  give 
before  sale  of  the  ward's  real  estate." 

56.  Jarrett  v.  State,  5  Gill  and  Johnson  (Md.),  27.  This  case  was  also 
ably  presented  and  considered.  It  appears  from  its  examination  that 
ihe  Maryland  statute  imposed  upon  natural  guardians  duties  similar 
to  the  usual  duties  of  other  guardians,  and  the  necessity  of  giving 
bond.  A  mother,  while  unmarried,  refused  to  act  as  the  natural 
guardian  of  her  child,  and  another  person  was  appointed.  Afterward 
the  mother  married,  and  the  guardian  died.  She  was  then  appointed 
"  natural  guardian,"  accepted,  and  gave  bond.  Suit  was  afterward 
brought  on  this  bond,  she  not  being  made  a  party  defendant.  The 
statute  was  silent  as  to  whether  a  married  woman  could  be  so  ap- 
pointed, and  the  validity  of  her  appointment,  and  consequently  of  the 
bond,  was  attacked.  The  court  decided  that  the  sureties  on  the  bond 
were  liable,  and  her  appointment  lawful. 

57.  Farrar  v.  Clark,  29  Miss.  195.  This  case  occupies  only  about  one 
page  in  the  report,  and  contains  almost  no  citations  or  authorities  of 
any  kind.  In  it,  the  court  held  that,  as  the  statute  of  Mississippi  di- 
rects that  preference  shall  be  given  in  all  cases  to  the  natural  guardian 
or  next  of  kin,  unless  such  person  is  manifestly  unsuitable,  Mrs.  F. 
(a  married  woman)  being  next  of  kin  and  not  unsuitable,  coverture 
was  not  an  impediment,  and  that  she  was  entitled  to  the  guardianship. 

58.  Spaun  v.  Collins,  18  Miss.  624,  and  Wood  v.  Stafford,  50  Miss.  370 

21 


310  APPENDIX. 

The  husband  of  a  guardian,  by  virtue  of  his  wife's  appointment,  may 
exercise  the  powers  of  a  guardian. 

59.  Cook  v.  Bybee,  24  Tex.  278.  "  Under  the  Texas  statutes,  a 
mother  may  be  the  guardian  of  her  child."     (Syllabus.) 

An  examination  of  this  case  shows  it  to  have  been  a  contest  between 
a  person  claiming  to  have  been  appointed  testamentary  guardian,  and 
the  mother,  who  claimed  her  right  under  the  statute  which  (quoting 
from  the  decision)  provides  that  "  the  mother,  ilnder  certain  circum- 
stances, '  shall  be  entitled  to  the  guardianship  of  her  minor  children, 
and  shall  have  the  custody  of  their  persons,  education  and  estates." 

60.  Carlisle  v.  Tuttle,  30*  Ala.  613,  624;  Martin  v.  Foster,  38  Ala.  688. 
The  marriage  of  a  female  guardian  has  the  effect  of  joining  the  hus- 
band in  the  guardianship. 

61.  Keene  v.  Guier,  27  La.  Ann.  332.  In  Louisiana,1  where  the 
mother  being  the  natural  tutrix  of  her  minor  children,  contracts  a 
second  marriage,  she  is  required,  previous  to  the  marriage,  to  cause  a 
family  meeting  to  be  convened  for  the  purpose  of  determining  whether 
she  shall  remain  tutrix  after  the  marriage.  If  she  fails  in  this  duty, 
she  loses  the  tutorship  ipso  facto. 

62.  He  Dagget,  3  Pick.  280.  This  case  is  sometimes  cited,  though 
erroneously,  to  sustain  the  right  of  a  married  woman  to  be  guardian. 
It  was  an  application,  by  next  friend,  to  sell  real  estate  of  an  infant 
feme  covert ;  but  it  does  not  appear  whether  the  next  friend  was  married 
or  single. 

63.  Graham's  Appeal,  1  Dallas  (Pa.  17S5)  decides  that  the  court 
may  appoint  as  guardian  whomever  it  pleases,  subject  to  its  legal  dis- 
cretion, which  confines  it  to  persons  of  the  same  religious  persuasion, 
of  good  repute,  and  approved  by  the  orphan.  But  there  is  nothing  in- 
dicating that  the  judges  had  in  mind  the  appointment  of  a  married 
woman,  or  any  other  person  not  sui  juris. 

IN    THE    LIGHT    OP    THE    STATUTES. 

64.  It  is  of  course  to  be  borne  in  mind  that,  in  such  matters,  the 
statutes  of  the  state  enacting  them  are  supreme  throughout  its  limits, 
and  that  before  them  all  principles  of  common  law  and  equity  must 
fully  give  way,  no  matter  how  well  established  in  other  states  or  coun- 
tries. 

65.  Some  states,  by  statute,  expressly  empower  married  women  to 
act  as  guardians.  For  instance,  in  Massachusetts,  it  is  provided  that  a 
married  woman  may  be  an  executrix,  administratrix,  guardian,  or 
trustee,  and  bind  herself  and  the  estate  she  represents,  without  her 
husband  joining  in  any  conveyance  or  instrument  whatever,  and  be 

(1)  In  which  the  civil  law  prevails;  see  chap.  1.  par.  18. 


IX    THE    LIGHT    OF   THE   STATUTES.  311 

bound  in  the  same  manner  and  with  the  same  effect  in  all  respects  aa 
if  she  was  sole.  Stat.  1874,  chap.  184;  see  also  Stat.  chap.  409.  Acfa 
of  1869.  And,  as  may  be  seen  from  some  of  the  preceding  paragraphs,1 
the  laws  of  several  of  the  other  states  favor,  in  greater  or  less  degree, 
the  same  policy.  We  should  therefore  expect  the  decisions  of  these 
states,  during  the  time  such  laws  are  in  force,  to  be  of  course  favorable 
to  a  married  woman's  right  to  be  a  guardian. 

66.  But  the  statutes  of  Ohio  provide  as  follows:  ''  Sec.  6292.  When  any 
unmarried  woman,  who  has  been  or  may  be  appointed  guardian  of  any 
minor,  shall  marry,  such  marriage  shall  of  itself  determine  the  guardianship 
of  such  woman;  and  the  probate  court  of  the  proper  county  shall  ap- 
point another  guardian  for  such  minor,  to  which  last-named  guardian 
all  the  estate  of  such  minor  shall,  on  demand,  be  delivered  up  by  such 
former  guardian;  and  she  shall  forthwith  render  her  guardianship  ac- 
count for  final  settlement."  2 

67.  "Sec.  6303.  When  any  person  having  a  wife  shall  be  declared  to 
be  an  idiot,  imbecile,  or  lunatic,  it  shall  be  lawful  for  the  probate 
judge  to  appoint  the  wife  of  such  person  his  guardian,  if  it  be  made  to 
appear,  to  the  satisfaction  of  the  judge,  that  she  is  competent  to  dis- 
charge the  duties  of  such  appointment;  and  any  married  woman,  ap- 
pointed such  guardian  shall,  in  her  said  capacity,  have  power  to  enter 
into  official  bonds,  and  she  and  her  sureties  thereon  shall  be  liable  in 
the  same  manner,  and  to  the  same  extent,  as  though  said  bond  was  ex- 
ecuted by  a  feme  sole." 

68.  The  inference,  from  these  sections  of  the  statutes,  that  the  law 
does  not  allow  a  married  woman  to  be  a  guardian,  unless  expressly  au- 
thorized, seems  to  be  irresistible  and  conclusive. 

69.  But  it  has  been  said  that  the  law  thus  provides  for  the  termina- 
tion of  guaidianship  by  marriage,  because  the  woman's  relations  are 
altered  by  marriage,  but  that  had  she  been  originally  appointed  after 
such  marriage,  as  might  have  been  lawfully  done,  the  court  and  her 
sureties  would  have  fully  understood  her  situation  and  relations,  and 
her  removal  would  not  have  been  necessary. 

70.  Had  that  been  the  view  of  the  law,  how  easily  it  could  have  pro- 
vided that,  in  case  of  such  marriage,  such  guardian  must  give  new,  or 
additional  bond,  or  must  take  out  new  letters  ?     But  it  gives  no  such 

(1)  See  paragraphs  41,  42,  47  and  notes  thereto,  53,  56,  57,  59. 

(2)  There  is  a  similar  provision  as  to  an  unmarried  woman  appointed  executrix 
or  administratrix,  who  afterward  marries,  the  law  being  so  explicit  as  to  provide 
that  marriage  shall  have  the  same  effect  as  her  death  would  have  had.  $  6022. 
Compare  with  paragraphs  32,  33,  above. 

It  has  been  held  in  England  that  a,  feme  covert  might  be  an  administratrix,  Hut  that 
was  before  22  and  23  Car.  II.,  which  required  administrators  to  give  bou<i.  1  Com. 
Dig.  Tit.  Adm'r,  B.  6  o,  p.  487. 


312 


APPENDIX. 


permission.  Tt  does  not  even  leave  it  to  the  discretion  of  the  judge  to 
remove  her,  as  for  other  cause,  but  makes  the  very  act  terminate  the 
guardianship,  and  makes  necessary  her  final  settlement. 

71.  Suppose  that  we  apply  this  reasoning  to  other  causes  of  removal: 
that  a  guardian's  removal  from  the  state  determines  the  guardianship 
because  of  changed  relations,  but  that  a  non-resident  of  the  state 
might  have  been  originally  appointed,  and  that  this  removed  guar- 
dian might  consequently  be  at  once  re-appointed,  as  this  would  neces- 
sarily follow.  Or  that  a  guardian  may  be  removed  because  he  has 
become  a  habitual  drunkard,  but  that  such  a  man  might  have  been 
originally  appointed !  In  these  cases,  certainly,  such  reasoning  needs 
no  refutation;  and  the  lawmakers  have  never  deemed  it  necessary  to 
provide  against  it.  But  they  did  carefully  provide  how,  in  one  certain 
case  only,  "it  shall  be  lawful"  for  a  married  woman  to  be  a  guardian, 
and  how  she  can,  in  that  case,  give  a  good  bond. 

72.  The  matter  in  the  preceding  paragraphs  is,  on  general  princi- 
ples, as  applicable  to  the  other  trustees  whose  duties  are  treated  of  in 
this  volume  as  it  is  to  guardians,  with  this  difference,  however,  that 
the  provisions  of  paragraphs  66  and  07  do  not,  in  terms,  apply  to  such 
trustees.  But  the  other  objection  to  a  married  woman's  being  in  control 
of  trust  property  are  much  the  same,  whether  she  be  a  guardian, 
executrix,  administratrix,  or  other  trustee. 


INDEX. 


[T7ie  figures  refer  to  the  pages,  including  the  matter  in  both  text  and  notes.     If 

matter  in  the  notes  alone  is  referred  to,  the  letter  n  follows  the 

number  of  the  page.~\ 


ABSTRACT  OF  TITLE— 

must  be  given  by  guardian  to  court,  when,  31,  39. 

ACCEPTANCE— 

of  guardianship,  42,  43. 

of  guardianship  ad  litem,  273. 

ACCOUNTS,  FINAL  AND  OTHER.     See  Guardian's  Account. 
settlement  of,  in  probate  court,  7,  12,  26,  50,  150,  163,  243. 
must  be  recorded,  11,  152,  161. 

can  not  be  made  for  guardian  by  judge,  clerk,  etc.,  11,  12. 
must  be  settled  in  common  pleas  court,  when.  12. 
mode  of  keeping,  with  ward's  estate,  47,  152-9. 
when  female  guardian  marries,  account  must  be  rendered,  50. 
when  ward  dies,  51,  88. 
when  guardian  dies,  who  must  render,  51. 
riling  of  must  be  enforced  by  court,  53,  63,  161,  256-8. 
must  be  rendered  by  guardian  and  trustee,  at  what  times,  26,  50,  63, 150, 

253,  257. 
who  may  compel  rendering  of,  and  how,  63,  256-7. 
of  money  on  deposit,  how  must  be  kept,  74,  75. 
guardian  must  pay  costs  of  suit  to  compel  filing  of,  86  n. 

and  costs  caused  by  his  neglect,  incompetence,  etc.,  86  n. 
object  of  the  account,  and  how  made,  151,  152,  153  n.,  154-9. 
should  be  clear  and  easily  understood,  why,  152. 
of  each  ward  should  be  separate,  152. 
form  of,  156-9,  254-6. 
final  must  show,  what,  158. 
must  be  sworn  to,  how,  159,  254,  256,  257. 
notice  of  filing  must  be  published,  how,  etc.,  161,  256. 

cost   of  this,  how  paid,  161. 
exceptions  to,  may  be  filed  by  whom,  etc.,  161,  162,  255-6. 

hearing  of  exceptions   161-2,  255-6. 
settlement  of,  between  guardian  and  ward,  163. 
guardian  must  exercise   good  faith  as  to,  163  n. 
is  only  an  ex  parte  statement,  when,  164  n. 
is  a  settlement  within  meaning  of  the  law,  when,  165  n. 
journal  entry  as  to  filing  of,  159. 
journal  entries  confirming  or  rejecting,  164-5. 
settlement  of,  must  be  in  probate  court,  162  n.  166  n. 
settlement  of,  is  final  when,  165,  166  n. 

313 


314  INDEX. 

ACCOUNTS,  FINAL  AND  OTHER—  Continued. 
appeal  from  settlement  of,  may  be  had,  280. 
may  be  reviewed  when,  1G5-6. 

notice  of  hearing  of  trustee's  accounts,  how  given,  etc.,  256-8. 
further  time  for  hearing  of,  given  when,  257. 
how  filing  of  trustee's  accounts  enforced,  256-8. 
settlement  of  trustee's,  force  and  effect  of,  261. 

may  be  appealed  from,  when,  etc.,  261. 

may  be  opened  up,  when,  why,  by  whom,  etc.,  261-2,  280. 

what  errors,  mistakes,  etc.,  may  be  corrected  in,  262. 
as  to  testimony  concerning,  in  certain  cases,  291-2. 

ACTION.     See  Suits;  Sale  of  Land;  Civil  Action. 
as  to  survival,  etc.,  of,  287-8. 

ACKNOWLEDGMENT— 

form  of  to  mortgage,  38,  135. 
form  of  to  deed,  134. 

ADJOURNMENTS— 

of  hearing  exceptions  to  bond,  when  and  how  obtained,  171. 

AD  LITEM.     See  Guardian  Ad  Litem,  under  Guardian. 

ADMINISTRATOR— 

can  not  be  guardian,  when,  28. 

must  settle  dead  ward's  affairs,  51,  88,  165. 

can  not  act  in  dead  guardian's  place,  51,  88. 

but  must  render  an  account  of  guardian's  affairs,  51. 
can  not  buy  ward's  land,  when,  126  n. 
compensation  of,  159,  160,  161. 

how  guardian  can  receive  assets  in  kind  from,  67,  294. 
entitled  to  ward's  effects  when,  165,  267-8. 
lands  sold  by,  recoverable  by  whom,  when,  197,  196,  199. 
of  insane,  idiot,  etc.,  certain  duties  of,  232. 
how  filing  accounts  of,  and  of  trustees,  enforced,  257-9. 

ADMISSIONS— 

of  guardian  ad  litem,  effect  of,  275,  276. 

ADOPTED  CHILD  OR  HEIR— 
rights  of,  and  as  to,  287. 

ADVANTAGE— 

guardian  can  take  no,  over  ward,  163  n.     See  Guardian;  Ward. 

ADVERSE  CLAIMANT.     See  Occupying  Claimant. 
ward  may  be,  196. 

may  evict  occupying  claimant,  when,  how,  etc.,  196-200. 
must  pay  for  improvements,  when.  196,  198. 
rights  of,  etc.,  if  successful,  199-200. 

AFFIDAVITS.     See  Oath  ;  Guardian,  Oath  of;  Forms. 
as  to  value  of  mortgage  security  to  bond  required,  31. 
requisites,  etc.,  of,  39. 
how  many  should  be  required,  39. 
when  be^t  to  get  tbem,  39. 
form?  (if,  in  such  cases,  40,41. 
who  may  take,  42. 
to  inventory,  47. 


INDEX.  315 

AFFIDAVITS—  Continued. 

probate  judge  should  take,  42. 

of  service  of  legal  notice  on  defendants,  107,  108,  170,  232. 

made  by  whom,  102,  110. 
to  obtain  order  for  private  sale  of  land,  \'2'.'>. 
as  to  how  private  sale  was  made,  131. 

should  be  attached  to  report  of  sale,  131. 
of  appraisers,  116,  142,  143a,  1436. 
to  account  of  guardian,  etc.,  109. 
as  to  guardian's  right  to  collect  interest  on  U.  S.  bonds,  29i>. 

AGE— 

when  male  person  is  of  full,  1,  2. 

when  female  person  is  of,  1,  2. 

wardship  ceases  at  full,  2,  3,  25,  267. 

age  of  fourteen  years,  effect  of,  25,  53,  103. 

age  of  twelve  years,  effect  of,  25,  58. 

of  ward  may  be  controverted,  why,  58. 

at  what,  ward  may  select  guardian,  58.  t 

at  what,  ward  may  marry  without  guardian's  consent,  70. 

of  ward  must  be  stated  in  petition  for  sale  of  ward's  land,  98. 

why  so,   104. 
ward  may  avoid  lease  at,  how,  and  effect  of,  143, 
conveyance  made  on  day  of  arriving  at,  llii!  n. 
children  of  what,  must  attend  school,  205-207/. 
within  which,  ward  may  be  bound  to  apprenticeship,  208. 
must  be  stated  in  indentures  of  apprenticeship,  effect  of,  209. 
ward  or  minor  sent  to  penal,  etc.,  institutions  at  what,  till  what,  214,  215. 

AGENT— 

guardian  responsible  for  acts  of,  except,  60  n.,  76. 
can  not  buy  ward's  land,  when,  126  n. 
duty  of,  as  to  paying  taxes,  145. 
_may  not  testify  when,  291-2. 

AGREEMENT— 

joint  bond  is  in  nature  of  an,  178. 

guardian  must  give  what,  as  to  insane  widow's  dower,  235. 

guardian  may  fix  boundary  of  ward's  land  by,  how,  286. 

ALLEYS— 

certain  rights,  duties,  etc.,  of  guardian  and  ward  as  to,  203,  201-204. 

ALLOWANCE— 

of  fixed  sum  for  ward's  maintenance,  85,  162  n. 

ANCESTRAL  PROPERTY— 

as  to  funds  from  sale  of,  138. 
ANSWER— 

of  widow  or  widower  waiving  dower,  111,  112,  234. 

of  idiot,  insane  person,  etc.,  must  contain  what,  etc.,  233. 

who  must  make,  233. 
of  guardian  ad  litem,  must  be  filed  when,  275. 

form  and  effect  of,  275,  277,  277  n. 
must  contain  what,  in  suits  brought  at  surety's  written  request,  288  n. 
APPEAL— 
from  probate  court  to  court  of  common  picas. 

no,  if  probate  judge  refuses  to  settle  certain  account,  162  n. 


316  INDEX. 

APPEAL—  Continued. 

may  be  had  as  to  settlement  of  accounts,  165,  280. 
and  in  road  matters  affecting  ward,  202. 
and  from  final  order,  judgment,  or  decree,  283. 
guardian  can  take,  without  giving  bond,  how,  202,  282,  295. 

so  may  minors,  idiots,  insane  persons,  202,  295. 
as  to  trustee's  settlement,  may  be  had,  261,  280. 
as  to  proceedings  for  sale  of  real  estate  to  pay  debts,  280. 
as  to  proceedings  for  completion  of  real  estate  contracts,  280. 
as  to  proceedings  for  appointment  of  guardians  and  trustees,  280. 
how  cases  appealed   must  be  tried,  etc.,  280-1. 
appeal  bond  generally  required.  281. 

when  to  be  filed,  its  conditions,  etc.,  281. 
what  transcript  must  also  be  filed,  when,  where,  etc.,  281. 
when  appeal  considered  perfected,  281. 
what  proceedings  are  had  in  common  pleas  court,  281-2. 
as  to  right  to  jury  in  such  cases,  281  n. 
.     as  to  orders  of  distribution,  283. 
from  superior  court. 

error  cases  from,  283. 
from  common  pleas  to  district  court. 
may  be  had  when,  how,  etc.,  283. 
duty  of  clerk  of  court  in  such  cases,  284. 
as  to  guardian's  giving  bond  in  such  case,  282,  284. 
from  district  court. 

error  cases  from,  283. 
from  magistrates    courts. 

rights,  duties,  liabilities,  etc.,  of  guardians  as  to,  284. 

APPEARANCE— 

of  minor  defendant  can  not  be  affected  by  guardian  ad  litem,  271. 

APPLICANT  FOR  APPOINTMENT.     See  Guardian;  Probate  Court; 
Bond. 

must  file  a  statement  of  ward's  estate,  30. 

must  give  bond-  30,  31. 

requisites  of  bond,  30,  31.  v 

its  condition,  31.     See  Bond 

may  give  mortgage,  instead  of  bond,  31. 

must  then  furnish  abstract  of  title,  31. 

must  make  oath  to  faithfully  discharge  duties,  etc.,  31. 

may  give  mortgage,  instead  of  freehold  sureties,  31. 

how  to  proceed  in  such  case,  39. 

should  be  appointed  if,  42. 

when  appointment  of  complete,  46. 

APPLICATION.     See  Applicant;  Petition. 
for  appointment  as  guardian,  30  31. 

for  removal  of  home  guardian,  in  favor  of  foreign  guardian,  52. 
will  not  be  granted,  unless,  52. 
for  sale  of  real  estate  by  guardian,  97-102. 
for  lease  of  real  estate  by  guardian,  140,  141,  143a,  1436,  236. 
for  appointment  of  guardian  of  drunkard,  249. 

firm  of,  how  served,  etc.,  250-251. 
of  money  paid,  etc.,  to  guardian,  83,  83  n,  94  n,  96  n,  138  n. 


INDEX.  317 

APPOINTMENT   OF  GUARDIAN.      See   Guardian;  Probate  Court; 
Residence. 
must  be  made  in  what  county,  7,  8,  17,  21,  22,  23. 
may  he  made  by  will,  5,  287. 

but  not  by  deed.  5. 
powers  of  probate  courts  as  to,  5,  7,  8,  8-10  n.,  20,  21-23. 

of  chancery  courts,  5,  6  n. 

of  common  pleas  courts,  7  n.,  8-10  n.,  12,  20,  21-23. 
application  for,  31,  H2. 

bond,  mortgage,  oath,  abstract  of  title,  etc.,  required,  31,  32, 
should  be  made  when,  42,  50,  57,  177,  311. 
must  be  noted  on  the  journal,  10,  42. 
what  journal  entry  of  should  show,  and  why,  45. 
what  is  effective  part  of,  17  n.,  45,  46  n. 
is  complete  when,  46. 
of  guardian  ad  litem. 

when  to  be  made,  110,  111,  233,  244,  271,  272. 
is  not  mere  form,  276. 

APPRAISERS— 

appointment  of,  in  sale  of  ward's  land,  113-115. 
are  usually  suggested  to  court  by  guardian,  114. 
qualifications  of,  113. 

must  be  sworn,  and  oath  of  endorsed  where,  116. 
must  appraise  ward's  land,  113,  114. 
must  divide  land  into  town  lots,  when,  113,  114. 
if  one  or  more  fail  to  act,  what  to  do,  115. 
should  be  consulted  before  appointed,  why,  115. 
certificate  of  appointment  of,  115. 
must  proceed  how,  116. 
must  assign  dower,  how,  116,  117. 
must  report  to  court,  when,  116,  117. 

can  not  buy  land  appraised  by  them,  126,  127,  and  notes, 
appointment,  duties,  etc.,  of,   in  leasing,  etc.,  ward's  real  estate.   143a. 
1436,  237-8,  248. 

APPRAISEMENT.     See  Appraisers. 
when  will  be  set  aside,  129. 
of  dower  and  of  lite  estate,  in  partition  proceedings,  194. 

APPRENTICESHIP— 

ward  may  be  bound  out  to,  when,  how,  etc,  208-213,  215,  216,  218. 
duties  of  various  persons  in  such  case,  208-210,  215-218. 

APPROPRIATION   OF  PRIVATE   PROPERTY  FOR  PUBLIC  USE. 
guardian's  duties  as  to,  201-204,  286-7. 
appeals  in  such  eases,  204,  282. 

ASSAULT.     ASSAULT  AND  BATTERY. 

as  to  suits  for,  287-8. 

ASSESSOR— 

must  furnish  guardian  what  blanks  for  tax  purposes,  147. 
must  enumerate  what  lunatics,  idiots,  etc.,  247-8. 

ASSETS.     See  Property;  Estate. 

received  by  guardian  from  administrator  or  executor,  must  be  adjusted 
etc.,  67. 
and  if  court  approves,  may  be  retained,  67. 
guardian  must  select,  when  293. 


318  INDEX. 

ATTORNEY— 

when  guardian  responsible  for  acts  of,  60  n. 

when  not,  76. 
guardian  exonerated,  if  he  follows  advice  of  his,  76. 
guardian  can  not,  directly,  or  by  attorney,  derive  profit  from  use  of 

trust  fund,  77  n. 
reasonable  fees  of,  are  proper  items  allowed  guardian,  etc.,  86. 
can  not  buy  lands  of  ward,  when,  126  n. 
duty  of,  as  to  paying  taxes,  compared  with  guardian's,  145. 
guardian  may  act  as,  of  ward,  when,  153-154  n. 
may  be  heard  at  hearing  of  exceptions  to  bond,  171. 
employment  of,  in  partition  matters,  186,  187. 
how  insanity  of  part}7  determined,  «hen  disputed  by,  233. 
majr  be  employed  by  guardian  ad  litem,  278. 
as  to  emplo}:ment  of,  in  certain  actions,  288. 

AUDITOR— 
of  county. 

duties  of,  as  to  taxes  on  ward's  property,  144-148. 

AUTHENTICATED  COPY  OF  RECORD,  ETC. 

must  be  filed  hy  foreign  guardian,  etc.,  when,  52,  243,  268. 
must  be  filed  in  cases  of  appeal,  281. 

AWARDS— 

must  be  docketed,  10. 

BALANCE— 

of  cash,  etc.,  on  hand,  account  of  how  carried  forward,  158. 
must  be  paid  to  whom,  165. 

BANK— 

as  to  money  guardian  or  trustee  deposits  in,  60  n.,  74,  75  n. 

BANK  BOOK— 

of  guardian,  how  entries  in  should  be  made,  74,  75. 

BANKRUPTCY— 

of  guardian,  does  not  affect  his  liability  on  his  bond,  182. 

BANS— 

of  ward's  marriage  necessary  when,  71. 

BENEFICIARY.    See  Ward;  Trustee;  Minor; 

BINDING  OUT— 

ward  or  other  minor  to  service  or  apprenticeship,  208-213,  215,  216, 
218,  220. 

BIRTH— 

full  age  attained  how  soon  after,  2. 

BLANKS— 

in  bonds,  may  be  filled  when,  36. 
how  signers  affected  by,  36. 

BLANK  BOOK— 

guardian  should  get,  and  keep  accurate  accounts  in,  47,  152. 


INDEX.  319 

BOARD  OF  EDUCATION— 

duties,  etc.,  of,  as  to  the  ward's  attending  public  school,  205-207e. 

BOARD  OF  PUBLIC  WORKS— 

rights,  duties,  etc.,  of,  as  anecing  ward's  land,  286-7. 

BOARDING.     See  Maintenance;  Ward. 

services  of  ward,  set  off  against  claim  for,  84,  85. 
must  be  charged  in  guardian's  account,  153. 

BOOKS— 

that  probate  court  must  keep,  9-11. 
that  guardian  should  keep,  and  how,  47. 
school,  how  supplied,  if  necessary,  206. 

BOND— 

amount,  etc.,  of,  must  be  entered  in  docket,  10. 

must  be  given  before  guardian  can  act,  17  n.,  30,  45-46  n. 

of  testamentary  guardian,  27,  31,  32. 

one  bond  for  two  or  more  wards  may  be  given,  32. 

fees  in  such  cases,  32. 
not  invalid  for  informality,  36. 

nor  for  illegality  or  informality  of  guardian's  appointment,  36. 
renders  signers  of,  liable  for  what,  32  n.,  178-184. 

for  how  long,  34  n. 
court  can  not  enlarge  the  scope  of,  32  n. 
rule  as  to  sureties  on,  in  Hamilton  county,  32  n. 
may  be  signed  in  blank,  36. 
when  blanks  in,  must  be  filled,  36. 

presence  or  consent  of  signers  not  necessary,  36. 
should  be  carefully  prepared,  why,  36. 
difference  between  form  and  substance  of  bond,  36. 
should  be  signed  in  court;  why,  37. 
why  signing  outside  is  bad  practice,  37.  * 
form  of,  if  freehold  surety  is  given,  34. 
form  of,  if  mortgage  security  is  given,  35. 
oath  of  office  may  be  indorsed  on,  or  annexed  to  bond,  45. 
suit  on,  must  be  brought  within  what  time,  180. 
suit  on,  may  be  brought  if  guardian  misuse  trust  fund,  79,  81. 
additional,  must  be  filed  by  guardian,  if  he  sell  land,  118,  i  19,  234,  238. 

if  such  bond  not  given,  what  to  do,  137. 

if  given,  whr.t,  137. 

if  not  required  by  court,  what,  137. 
additional,  must  be  filed  by  guardian,  when  else,  171-2,  172  n.,  173. 
form  of,  when  additional  required,  119. 
form  of,  when  additional  by  foreign  guardian.  136,  137. 
exceptions  to  may  be  filed,  by  whom  ;  when,  169. 

form  of,  169. 

proceedings  as  to,  169-174. 

journal  entries,  dismissing;  sustaining;    172,  173. 
liability  of  sureties  on,  32  n.,  33  n.,  172  n.,  177,  178-9  n.,  180. 
as  to  joint,  178. 

suits  on;  by  whom  brought,  etc.,  178. 
guardian's  liability  does  not  depend  on,  179-80. 
when  it  recites  appointment,  signors  estopped  as  to  what,  179  n. 
validity  of,  can  not  be  questioned  when,  179  n.,  230. 


320  INDEX. 

BOND—  Continued. 

not  affected  by  guardian's  bankruptcy,  182. 
married  woman  may  give,  when,  230,  311. 

perhaps  not,  when,  30,  297-307. 
foreign  guardian,  conservator,  etc  ,  must  give,  243. 

who  may  give  to  infirmary  directors,  to  prevent  sale  of  pauper's  land,  247. 
trustee  of  non-resident  idiot,  lunatic,  minor,  etc.,  must  give,  264. 

form  of,  265. 
for  appeal,  generally  required,  281. 

but  not  from  guardian  and  others,  when,  202,  282,  283,  295- 

its  conditions,  time  for  filing,  etc.,  280-1. 
as  to  bond  in  error,  guardian,  etc.,  need  not  give,  283,  295. 
certain  provisions  for  surety's  benefit,  not  applicable  to,  289. 

BONDS— 

guardian,  must  invest  in  what  kind  of,  66,  68,  290. 

guardian  must  charge  himself  with,  of  ward,  152. 

proceeds  of  sale  of  entailed,  etc.,  estate  must  be  invested  in,  or,  290. 

concerning  ward's  registered  government,  296-296c. 

as  to,  of  railroad, lipid  by  guardian,  295. 

BOUNDARY— 

of  ward's  land  fixed  by  guardian's  agreement,  286. 

BROTHER— 

rights  of,  as  to  attendance  at  school,  205. 

BUILDING  ASSOCIATIONST 

guardian's  rights  as  to  ward's  stock  in,  69. 
directors  of,  may  do  what  as  to  minor's  stock  in,  69. 

BUSINESS— 

can  not  be  carried  on  with  trust  fund,  77-79. 

penalty  and  liability  of  trustee  and  guardian  who  does  this,  78,  79. 

of  drunkard,  may  be  carried  on  by  guardian,  how  ?  251  n. 

CAPITAL- 

of  ward's  estate  should  be  used  only  when,  79,  80. 

CARE.     See  Custody. 

degree  of  required  of  guardian,  60-61  n.,  66  n.,  74,  75,  74-76  n.,  86.  139 

n.,  155  n..  158  n.,  36. 
compensation  of  guardian  for,  of  property,  etc.,  160. 

CASES  EXAMINED— 

with  a  view  to  married  woman's  right  to  be  appointed  guardian,  303-310. 

CERTIFICATE— 

of  supervisor,  ^tc,  as  to  road  material  taken,  etc.,  204. 
of  attendance  at  school;  necessary  what  for,  etc.,  206. 
of  probate  court's  approval  of  binding  out  ward,  208. 
form  of  such  certificate,  213. 

CERTIFIED  COPY— 

of  bond,  may  be  sued  on,  178. 

who  must  furnish  such  copy  of  bond;  when,  ITS. 

CESTUI  QUE  TRUST.     See  Ward;    Insane  Person;    Imbecile;    Idiot; 
Drunkard. 

CHARGE    AGAINST    GUARDIAN.      See    Complaint;    Guardian,   re- 
moval of. 


INDEX.  321 

CHILD.     See  Minor;   Infant;  Ward. 

illegitimate.     See  Illegitimate  Child. 

removed  from  father's  control,  for  what,  6  n.,  8-9  n. 
on  whose  application,  6  n. 

of  divorced  parents,  guardians  for,  8  n. 

residence  of,  how  determined,  and  why  important,  17-23. 

must  attend  public    school  when,  205. 

unlawful  to  employ,  who  has  not  attended  school,  206. 

may  be  bound  to  apprenticeship,  how,  etc.,  208-213. 

of  insane  person,  imbecile,  etc.,  how  consulted,  234. 

adopted,  rights  of,  and  as  to,  287. 
,        parents  can  not  be  deprived  of  custody  and  education  of,  unless,  20,  23, 
24  n.,  61,  69,  70,  303. 

CHILDREN'S  HOME— 

when  and  how  ward  or  other  minor  may  be  sent  to,  207rf,  216-218. 

CITATION— 

court  will  issue,  when,  and  for  what,  55,  182,  256. 
form  of,  55,  56,  259. 
how  served,  56. 
journal  entry  as  to  57 

CITY— 

guardian  may  invest  in  bonds  of  what,  66. 
as  to  children's  homes,  etc,  in,  217,218. 

CIVIL  ACTION.     See  Suit;    Sale. 

final  settlement  may  be  reviewed  by,  when  and  where,  166. 
between  guardian  and  ward  not  maintainable,  when,  166  n. 
to  get  directions  from  court,  72,  73. 

CIVIL  LAW— 

guardianship  under,  6. 
affects  our  laws  how,  6. 

CLAIM— 

of  ward  against  guardian  barred,  when,  165,  166  n. 
of  ward  against  guardian ;  how  collected,  182. 

CLAIMANT.     See  Occupying  Claimant;  Adverse  Claimant. 

CLERK.     See  Deputy. 

of  board  of  education,  duties  of,  as  to  children  at  school,  206,  207. 
of  township,  as  to  child  bound  out,  209,  as  to  sale  of  liquors,  223. 
of  corporation,  as  to  child  bound  out,  209,  as  to  sale  of  liquors,  223. 

CLOTHING— 

must  be  charged  in  account,  153. 

COAL  LANDS— 

of  ward,  lease  of,  etc.,  143-143a. 

COLONIES,  AMERICAN— 

Kn»;ish  guardianship  since  founding  of,  5,  204. 

COMMITTEE— 

to  examine  as  to  sanity  of  dower  owner,  244. 


322  INDEX. 

COMMON  LAW— 

age  of  majority  at,   1  n. 

guardianship  under,  3-5,  298-309. 

is  in  force  in  Ohio  to  what  extent,  297-8. 

COMMON  PLEAS  COURT.     See  Court. 

COMMON  SCHOOL- 

what  children   must  attend,  when,  etc.,  205-207,  209. 

duties,  etc.,  of  guardian  as  to  ward's  attending,  205-207,  209. 

COMPENSATION.     See  Fees. 

of  guardian. 

none  allowed  to.  in  England,  83. 

reasonable   pay   allowed  to  here,   for  time,  trouble,   and   services,  83, 

159-161. 
none  allowed  for  maintaining  ward,  when,  85. 
amount  of,   arrived  at  how,  generally,  159. 
for  taxes  paid,  and  for  time  and  trouble  connected  with,  146. 
none  allowed,  when,  161. 
majT  charge  for  attorney's  fees,  when,  153,  154  n. 

of  guardian  ad  litem. 

fixed  by  court,  and  taxed  as  costs  in  case,  233,  278. 
of  certain  trustees  for  the  suit,  233. 

to  ward. 
as  to  roads,  streets,  etc.,  affecting  real  estate  of,  201-204. 

of  witnesses,  officers,  etc. 

for  services  in  probate  court,  13. 

COMPLAINT— 

probate  judge  should  not  wait  for,  13,  53-4. 

who  may  make,  54. 

hearing  of,  54,  56,  57. 

form  of,  54,  55. 

why  sometimes  necessarjr,  55. 

affidavit  to  complaint,  when  required,  55. 

form  and  effect  of  affidavit,  55. 
should  be  filed  among  papers  of  the  case,  55 

COMPROMISE— 

guardian  may  make,  as  to  insane  widow's  dower,  235. 

CONDUCT— 

of  ward,  may  justify  guardian  in  sending  him  to  reform  school,  214. 
or  to  house  of  refuge,  218. 

CONFIRMATION  OF  SALE  OR  LEASE— 
asked  for  when,  116,  143a,  1436. 
must  be  granted  when,  131,  143a,  1436. 
order  of,  132,  1436. 

CONSERVATOR— 

of  estate  of  idiot,  imbecile,  etc.,  powers  of,  etc.,  242. 

CONSTABLE— 

must  serve  in  probate  court,  13. 
fees  of,  in  such  cases,  13. 


im.ex.  323 

CONSTITUTIONAL  PROVISIONS.     See  Jurisdiction. 
as  to  jurisdiction  of  probate  court,  7. 

CONSTRUCTIVE  RESIDENCE— 

is  where  guardian  of"  minor  must  be  appointed,  17,  18  n.,  22,  23. 

CONTRACTS.    See  Sale. 

between  guardian  and  ward,  how  treated,  82. 

for  sale  of  real  estate,  when  one  part;  dies,  what  to  do  about,  226-8. 

for  same,  by  idiot,  imbecile,  or  lunatic,  238-9. 

appeal  as  to  real,  may  be  had,  280. 

CONVEYANCE.     See  Sale;  Property;  Estate;  Real  Estate. 

CORNER— 

of  ward's  land  fixed  how,  by  guardian,  286. 

CORONERS— 

must  serve  writs,  etc.,  in  probate  court,  13. 
fees  of,  in  such  cases,  13. 

COSTS— 

judgment  for,  in  decree,  58. 

of  litigation,  fairly  incurred,  allowed  to  guardian,  86. 

when  not,  86  n. 
not  recoverable  in  taxable  matter,  when,  148. 
of  notice  of  filing  accounts,  how  paid,  161. 
when  guardian  must  pay,  173,  86  n.  • 

when  not,  173,  86. 

COUNTY.    See  Residence. 

guardian  may  invest  in  bonds,  of  what,  66 

guardian  may  be  sued,  in  what,  181. 

summons,  will  issue  to  what,  181. 

as  to  partition  of  lands  in,  189. 
auditor  of. 

duties  of,  as  to  taxes  on  ward's  property,  145-149. 
treasurer  of. 

must  collect  ward's  taxes  how,  if  necessary,  147. 

duties  of,  as  to  redeeming  land  sold  for  taxes,  149. 
clerk  of,  duties  of,  as  to  ward's  taxes,  147-8. 
infirmary  of,  lunatic  or  idiot  may  be  confined  in,  when,  246. 
commissioners  of. 

must  pay  for  read  material  taken  from  ward's  land,  204. 

COURT.     See  Probate  Court. 

as  to  appointment,  etc.,  of  guardian  ad  litem  by,  110,  233,  244,  270-9. 
of  chancery. 

controls  guardian  by  nature,  in  England,  3. 

appoints  and  controls  chancery  guardians,  in  Englaud,  5,  6  n. 

whom  it  prefers  as  guardian,  30. 

remedies  obtainable  in,  generally.     See  Guardian;  Trustee. 

directions  formerly   given  by,  now  given  to  guardian,  etc.,  by  court  of 

common  pleas,  72-3. 
will  treat  trustee's,  etc.,  purchase  of  ward's  property  how,  80-81  n. 
generally  allows  fixed  sum  for  maintenance  of  ward,  85. 


324  INDEX 

COURT—  Continued. 

will  not  enforce  decree  against  ward,  when,  99  n. 

as  to  guardian's  appearance  for  wards,  how  treated,  102-3  n. 

of  common  pleas- 
jurisdiction  of,  as  affected  by  probate  statute,  7  n.,  8  n.,  8-10  n.,  96  n. 
duties  of,  if  probate  judge  is  heir,  legatee,  attorney,  etc.,  in  matters  in 

his  court.  12,  13.' 
formerly  appointed  guardians,  8  n.,  16  n.,  20-23. 
suits  to'  get   directions   of,  may  be  brought    in,  by  guardian,  creditor, 

legatee,  distributee,  executor,  etc..  72,  73. 
has  jurisdiction  over  guardians'  sales  of  land,  97. 
code  practice  in,  to  govern  probate  court  when,  103. 
must  enforce  payment  ot  ward's  taxes,  how,  148. 

appeal  to,  from  probate  court,  may  be  taken,  when,  165,  202,  261,  280-3. 
suits  in,  as  to  final  settlements  of  guardian,  165,  166. 
partition  proceedings  must  be  in,  187,  188. 
may  send  ward  to  reform  school,  214. 
may  release  ward  from  house  of  refuge,  etc.,  220. 
duties  of,  as  to  dower  of  insane  woman,  244-5. 
may  authorize  wife  of  idiot,  lunatic,  etc.,  to  convey  her  lands,  how,  246. 

district  court. 

error  cases  from,  283. 
magistrates'  courts.     See  Justice  ;  Mayor;  Police  Judge. 

as  to  duties,  etc.,  of  guardian,  in  appeals  from,  284. 

COURTS— 

view  ward's  labor  and  services  how,  84-5. 

decisions  of,  in  other  states  followed  here  to  what  extent,  73,  74. 

CREDITOR— 

may  get  directions  of  count  on  certain  matters,  how,  72-3. 

must  bring  suit  on  note,  etc.,  if  surety  on  requires  it,  288. 

guardian's  duty,  liability,  etc.,  in  such  case,  289. 

CRIMINAL  ACTS— 

of  guardian  or  trustee.     See  page  295. 

of  agent,  guardian  and  trustee  responsible  for,  76,  60  n. 

of  stranger,  guardian  and  trustee  not  responsible  for,  7f>. 

CRUELTY— 

guardian  and  parents  must  protect  bound  ward  from,  209,  296. 

duties  of  justice  of  the  peace,  jury,  and  others,  in  such  case,  210) 

CURATOR—  ^"% 

under  civil  law,  had  care  of  estate,  6. 
CURTESY— 

estate  by,  can  not  be  sold  how,  289. 

CUSTODY— 
of  minor. 

guardian  has,  when,  60,  68,  69,  70. 
father  has,  when,  6  n.,  20,  23,  24  n.,  61,  69,  70,  303. 
mother  has,  when,  8-9  n.,  20,  61,  69,  70,  303. 
step-father  has,  when,  18. 

DAMAGES— 

guardian  liable  for,  when,  60-61  n.,  145. 

as  to  wrongful  issuing  of  marriage  license,  71  n. 


index.  325 

DAMAGES—  Continued. 

in  cases  of  contested  ownership  of  land,  198. 

caused  by  intoxicating  liquors,  to  guardian,  ward,  etc.,  221-225. 

must  be  paid  by  whom,  221,  224. 

to  whom,  221,  223,  225. 

how  collected,  224. 

DAY— 

of  attaining  full  age,  2 

DEATH- 
of  guardian. 

does  not  end  surety's  liability,  33  n.,  except,  178. 

new  guardian  must  be  appointed,  on,  232. 
of  ward. 

terminates  guardianship,  51,  88. 

and  certain  trustee's  authority,  267. 

terminates  lease,  140,  235. 

other  effects  of,  51,  88,  267. 
of  trustee. 

effect  of,  257. 
of  party  to  suit. 

effect  of,  287-8. 

DEBTOR— 

must  be  sued  when,  if  surety  on  a  note  requires  it,  288. 

DEBTS.     See  Debts:  Settlement. 
of  surety. 

questions  as  to,  by  judge,  33,  34. 
due  ward. 

guardian  can  not  release.  61  n.,  86. 
but  may  compound,  64. 

bad,  how  to  enter  in  account,  why,  154,  159. 

should  sometimes  be  reduced  to  judgment,  154,  155. 

trustee  must  collect  266. 
of  minor  wai'd. 

property  of,  must  be  sold  to  pay,  when,  95,  233. 

must  be  accounted  for,  153,  154. 

to  guardian,  must  be  settled  how,  162,  166  n. 
of  insane,  etc. ,  ward. 

property  of,  must  be  sold  to  pay,  when,  how,  etc.,  233-235. 

DECREE.     See  Judgment  ;  Journal  Entry. 

DEMURRER.     See  Pleadings. 

DECISIONS— 

of  courts  of  other  states,  force  and  effect  of,  here,  51. 
principles  derived  from,  stated,  73,  74,  73-90. 
concerning  married  women's  rights,  298. 

DEED— 

of  ward's  lands  sold,  ordered  by  court,  131. 
form  of  guardian's,   132. 
guardian  must  give,  when,  235. 

must  be  given  by  sheriff',  for  land  sold  in  partition,  192,  194. 
22 


326  INDEX. 

DEED—  Con  tinned. 

must  he  executed,  in  case  of  decedent's  real  contracts,  when,  226. 
must  be  executed,  in  case  of  idiot's,  lunatic's,  etc.,  real  contract,  238. 
must  be  executed,  in  case  of  insane  woman's  dower,  244. 
trustee  appointed  by,  258. 
guardian  can  not  be  appointed  by,  5. 

DEFENDANTS— 

who  must  be,  in  suit  to  sell  ward's  land,  99,  102. 

who  must  be,  in  partition  matters,  188. 

how  notified,  102,  107-110. 

affidavit  required  as  to  residence  of,  as  to  notice  by  publication,  etc., 

107,  108. 
entitled  to  a  day  in  court,  110. 

not  bound  by  court's  action,  110. 
rights  of  one  saved,  saves  rights  of  other,  181  n. 
who  must  be,  in  proceedings  to  lease  ward's  land,  140,  236. 
who  must  be,  in  proceedings  as  to  insane   woman's  dower,  244,  245. 

DEFENSE— 

of  infant  must  be  by  guardian  ad  litem,  110,  111,  271. 

DELINQUENCY— 

judgment  for  one,  does  not  bar  suit  for  another,  179. 

DEPOSIT— 

of  money  in  bank,  74.     See  Money  ;  Guardian. 

DEPOSITIONS— 

may  be  used  in  probate  court,  13. 

DEPUTY— 

of  probate  judge. 

may  administer  oaths,  10. 

can  not  prepare  papers,  etc.,  for  guardian,  11. 

DEVISEE— 

when  a  necessary  party  to  sale  of  ward's  land,  what  to  do,  108. 
as  to  restricting  testimony  by,  or  against,  in  certain  cases,  291-2. 

DILIGENCE— 

rule  as  to  proper,  60-61  n.,  66  n.,  67  n.,  74,  75,  74-76  n.,  76,  86,  139  n., 

155  n.,  158  n. 
must  be  exercised  for  benefit  of  ward,  77. 
must  be  used  to  find  defendant's  residence,  107. 

DIRECTORS— 

of  building  association,  duties,  etc.,  of,  as  to  ward's  shares,  69. 
of  public  school,  duties  of,  as  to  ward's  attending  school,  205-207. 
of  county  infirmary,  duties  of,  as  to  lunatic  or  idiot,  246-7. 

OF  HOUSE  OF  REFUGE,  ETC— 

duties  of,  etc.,  as  to  minors,  215-220. 

DISCHARGE— 

of  ward  or   minor  from  industrial  or  children's  homes,  etc.,  215,  216, 
217,  218. 

DISCRETION— 

judge  should  exercise,  as  to  removing  guardian,  57,  53  n. 
guardian  should  exercise,  as  to  ward's  expenses,  etc.,  65  n.,  69  n. 
directors  of  building  association,  may  exercise,  as  to  ward's  stock,  69. 
judge  uses  his,  as  to  private  sale  of  ward's  land,  123. 


INDEX.  327 

DOCKETS— 

that  probate  court  must  keep,  and  how,  10. 
return  of  order  of  sale  noted  on  what,  128. 

DOMICILE.    See  Residence. 

DOWER— 

jurisdiction  of  probate  court  as  to,  97,  103,  111,  234,  293. 

must  be  set  out  in  petition  for  sale  of  ward's  land,  99,  234. 

if  previously  assigned,  what  to  state  in  such  petition,  99. 

may  be  assigned  in  such  cases,  103,  111. 

money  in  lieu  of,  111,  141,  234. 

collusive  assignment  of,  will  net  prejudice  minor  heir,  112. 

assignment  of,  in  guardian's  sale,  97,  103,  111,  111'. 

assignment  of,  in   partition  proceedings,  194. 

assignment  of,  in  sale  ol    insane,  idiotic,  etc.,  person's  land,  234,  235. 

sold  how,  in  such   case,  234-5. 
order  to  assign:    if  none  to  assign,  what  to  do,  115,  116,  119. 
how  assigned,  103,  116,  117,  140,298. 
as  to,  in  case  of  long  lease  of  ward's  land,  140,  141. 
as  to,  in  case  of  sale  of  lands  of  lunatic,  idiot,  imbecile,  etc.,  234. 

if  widow  is  insane,  etc.,  234-5,  244-5. 
how  insane  person's  right  of,  may  be  divested,  paid  for,  etc.,  244-5,  293. 

mortgage,  stocks,  etc.,  to  insane  person,  in  lieu  of,  244,  245. 
estate  by,  can  not  be  sold,  how,  289. 

DRUNKARD.     See  Intoxicating  Liquors. 
guardian  of  denned,  2. 

law  as  to  appointing  guardian  for,  constitutional,  7,  8  n.,  250-1  n. 
may  be  removed  from  guardianship,  53. 
what  to  do  with  child  of,  sometimes,  219. 
guardian  for   may  be  appointed;  when,  how,  etc.,  249-252,  305. 

appeal  may  be  had  from  such  appointment,  280. 

effect  of  such  appointment  on  power  to  convey  property,  251. 

powers,  duties,  etc.,  of  such  guardian,  249-252. 
conve\Tance  of,  invalid  when,  251. 
restored  to  control  of  his  property,  when,  252. 

DRUNKENNESS- 

guardian  may  be  removed  for,  53. 

is  reason  for  appointing  guardian  of  person  afflicted  with,  249. 

DUTY.     See  Guardian  ;  Probate  Judge  ;  Guardian  ad  Litem,  Etc. 
neglect  of,  cause  for  removing  guardian,  53. 
guardian's,  how  enforced  by  court,  53,  178-185. 

EDUCATION— 
of  ward. 
guardian  controls,  when,  60,  64,  65  n.,  66  n. 
father  controls,  when,  61. 
mother  controls,  when,  61. 
guardian  must  furnish  to  ward,  to  what  extent,  64, 65  n.,  69, 79-80, 83  n., 

85,  89-90,  207,  209. 
capital  of  ward  may  be  used  for  his,  when,  80. 
yearly  allowance  for,  sometimes  fixed,  how,  85-6. 
includes  what,  89,  90. 
property  may  be  sold  to  provide,  95. 
property  may  be  leased  to  provide,  140,  143. 


328  index. 

EDUCATION— Continued. 

ward  must  attend  public  school,  when,  205-207/,  209. 

books  to,  free  ui'  cost,  when,  206. 
duties,  etc.,  of,  board  of,  as  to  school  attendance,  205-207/. 

EMBEZZLEMENT— by  guardian  or  trustee,  296. 

ENGLAND— 

guardianship  in,  2-5. 

as  to  gifts  to  guardian  in,  83. 

rule  in,  as  to  attorney's  fees,  in  certain  cases,  154  n. 

married  woman's  capacity  to  act  as  guardian  in,  298-305. 

ENTAILED,  CONDITIONAL,  DETERMINABLE,  ETC.,  ESTATES— 

may  be  sold  how   etc.,  289-291. 

guardian's  duties,  etc.,  in  such  matters,  290-1. 

trustees  appointment,  duties,  etc.,  in  such  matters,  290-1. 

proceeds  of,  how  invested,  etc.,  290. 

security  for,  290. 
who  to  receive  income,  pay  taxes,  etc.,  291. 
may  be  leased,  how,  etc.,  291. 

ENTRIES— 

must  be  made,  11. 
how  paid  for,  in  certain  cases,  11. 

showing  balances  in  guardian's  hand,  must  be  carried  into  next  ac- 
count, how,  158. 

EQUITY— 

married  woman  may  be  trustee  in,  298,  299,  312. 

ESTATE.     See  Entailed,  etc.,  Estate. 

of  minor  child,  not  controlled  by  parent,  2,  3. 

all  orders  concerning,  must  be  entered  on  guardian's  docket,  10. 

duty  of  court  as  to  protecting,  etc.,  53,  54. 

must  be  managed  by  guardian,  62,  68-9,  84  n. 

what  must  be  paid  out  of,  69.     See  Guardian. 

how  foreign  guardian  can  get,  of  non-resident  ward,  72. 

court  will  direct  as  to  doubtful  matters  concerning,  when,  72-3. 

relative  amount  of,  decides  who  must  maintain  ward,  when,  87. 

of  deceased  guardian,  liable  for  his  acts,  when,  178,  33  n. 

of  ward  affected  by  partition,  186,  187. 

of  idiot,  imbecile,  or  lunatic,  how  settled,  if  insolvent,  242. 

of  same,  rights  of  foreign  guardian,  etc.,  as  to,  242. 

entailed,  conditional,  determinable,  etc.,  may  be  sold,  how,  etc,  289-291. 

EVIDENCE— 

what  is  priviledged  communication,  etc..  291-2. 

when  a  party  may  not  testify,  291-2. 

certified  copies  of  letters  of  guardianship  are,  for  collecting  interest,  293. 

what  is,  of  guardian's  authority  being  in  force,  294. 

EVICTION— 

of  tenant  on  land  sold  at  guardian's  sale,  138. 

EXAMINATION.     See  Account  ;  Probate  Judge. 
of  accountant  under  oath,  257. 

EXCEPTIONS— 

to  bond. 

where  considered,  41,  57. 


INDEX.  329 

EXCEPTIONS—  Continued. 

may  be  filed  by  whom,  etc.,  169,  173. 
notice  of,  109. 
to  accounts. 
who  may  file,  161,  174. 

guardian  and  trustee  must  be  notified  of,  169,  174,  256. 
hearing  of,  161-2,  174,  256-7. 
judge  may  grant  further  time  for  filing,  161,  257. 
final  hearing  of,  testimony  and  arguments  at,  171-2. 
decision  of  court  as  to,  171-3. 

EXECUTION— 

Jor  costs. 
form  of,  58. 

EXECUTOR— 

can  not  be  guardian,  when,  28. 
can  not  act  for  dead  guardian,  51. 

but  must  render  an  account  for  guardian,  51. 

compensation  of,  in  such  case,  161. 
duty  of,  as  to  taxes,  compared  with  guardian's,  145. 
compensation  of,  159-160. 

how  guardian  may  receive  assets  in  kind  from,  67. 
land  sold  by,  sometimes  recoverable,  how,  etc.,  197,  196-199. 
of  idiot,  lunatic,  etc.,  certain  duties  of,  232. 
filing  of  accounts  of,  and  of  trustee,  hosv  enforced,  257-8. 

EXPENSES— 

guardian  allowed  all,  reasonably  incurred,  86,  159,  160. 
of  child  sent  to  house  of  refuge,  who  must  pay,  etc.,  219. 
of  guardian  ad  litem  allowed,  278. 

FAILURE—  * 

of  bank,  effect  on  guardian  and  trustee,  60-61  n.,  67  n.,  74,  75,  74-76  n. 

FATHER— 

is  guardian  by  nature,  3. 

rights,  duties,  etc.,  of,  as  sucn  guardian,  3,  293. 

control  of  his  children  taken  from  him  for  what,  6  n.,  23,  24  n.,  69,  70. 

when  residence  of,  is  residence  of  ward,  8-10  n.,  17,  18,  22. 

may  appoint  guardian,  by  will,  5,  26. 

should  be  appointed  guardian,  when,  29. 

is  entitled  to  custody  and  control  of  education  of  his  child,  when.  61,  69, 

70,  87. 
if  he  fails  to  educate  his  child,  what,  64,  65  n.,  61,  69,  70. 
consent  of,  to  get  married,  necessary  when,  70. 
damages  to,  for  wrongful  issuing  of  marriage  license,  71  n. 
must  maintain  and  educate  his  child,  generally,  87. 

but  not  always,  if  child's  estate  is  the  larger,  87. 
must  be  served  with  notice  or  summons  for  minor,  when,  104. 
must  list  child's  property  for  taxation,  146. 
duties,  etc.,  of,  as  to  sending  child  to  school,  205-207. 

fine  for  neglecting,  206. 
duties,  etc..  of,    as  to  binding  out  child  to  apprenticeship,  209-213. 
duties,  etc.,  of,  as  to  committing  child  to  reform  school,  214. 

and  to  industrial  home,  215. 

and  to  children's  home,  216-218. 

and  to  house  of  refuge,  218-220. 


330  INDEX. 

-FATHER- Continued. 

should  not  be  appointed  guardian  ad  Mem,  when,  111  n 
can  not  collect  interest  on  child's  government  bonds,  293. 

FEES—.     See  Compensation  ;  Guardian,  Compensation  of. 
of  witnesses,  officers,  etc.,  in  probate  courts,  13. 
in  case  of  filing  certain  bond,  32. 
how  charged  in  guardian's  account,  153. 
attorney's  fees,  when  allowed  to  guardian,  153,  154  n. 
for  certified  copy  of  bond,  must  be  paid  when,  178. 

FEMALE  PERSON.     See  Widow;  Wife;  Married  Woman ;  Dower 

when  of  full  age,  1,  2. 

FINAL  ACCOUNT— 

must  be  filed  and  settled  when,  26. 

FINAL  SETTLEMENT.     See  Settlement;  Account. 

FINE- 

guardian,  parent,  etc.,  for  not  sending  child  to  school,  200,  207c,  207/. 
also,  for  sale  of  intoxicating  liquors  on  ward's  premises,  224. 
no  exemptions,  except  in  such  cases,  224. 
for  cruelty,  etc.,  to  ward,  296. 

FIREMEN'S  PENSION  FUND— 

guardian's  rights  and  duties  as  to,  287. 

FORCIBLE  ENTRY  AND  DETAINER— 

applicable  to  lands  purchased  at  guardian's  sale,  etc.,  138,  295. 

FOREIGN  GUARDIAN— 

appointment  of,  will  cause  removal  of  guardian  here,  when,  52. 
proceedings  and  proof  in  such  case,  52. 
will  receive  all  ward's  property,  when,  52.    • 
notice  to,  may  be  served  by  publication,  181. 

FORMS— 
acceptance. 

of  guardianship  ad  litem,  274. 

account. 

of  guardian  of  ward's  estate,  156-7. 

oath  to,  159. 
confirmation  of,  164-5. 
of  trustee,  of  beneficiary's  estate,  254-6. 

acknoivledgment. 

to  mortgage,  38,  135. 

to  guardian's  deed,  134. 
adjournment. 

journal  entry  as  to,  171. 

affidavit. 

of  proposed  surety  to  guardian's  bond,  34. 

as  to  value  of  land  to  be  mortgaged  as  security  on  bond,  40. 

as  to  statement  of  ward's  estate,  42. 

to  complaint  against  guardian,  etc.,  55. 

to  service  of  notice  of  summons,  etc.,  107. 

to  obtain  service  of  notice  by  publication,  108. 

in  proof  of  same,  109. 
to  guardian's  inventory,  47. 


INDEX.  331 

FORMS—  Continued. 

verifying  widow's  answer,  112, 

to  application  to  sell  ward's  land  at  private  sale,  123. 
showing  expediency  of  private  sale,  124. 
in  proof  of  notice  of  sale,  128. 
sis  to  how  private   sale  was  made,  131. 
to  guardian's  account,  159. 
to  notice  of  filing  exceptions  to  bond,  171. 
to  notice  of  surety's  application  for  release  from  bond,  175. 
to  trustee's  account,  256. 

as  to  guardian's  right  to  collect  interest  on  IT.  S.  bonds,  294 
as  to  ward's  identity  for  same  purpose,  295. 
agreement. 

concerning  the  binding-out  of  ward,  21 L 

answer. 

of  widow,  waiving  dower  and  asking  money  value  of,  112. 

of  guardian  ad  litem,  277. 
application.     See  Petition;  Motion 

for  leave  to  sell  ward's  land  at  private  sale,  123. 

for  leave  to  lease  ward's  land,  140,  141,  236-7. 

to  be  released  from  bond,  175. 

journal  entry  as  to,  176. 

for  citation  to  compel  trustee  to  file  account,  259. 

for  appointment  as  trustee  of  non-resident  minor,  idiot,  etc.,  265. 
oatb  to,  265. 
journal  entry  as  to,  265. 

for  payment  of  ward's  money  to  foreign  guardian,  adm'r,  etc.,  268. 

for  appointment  as  guardian  ad  litem,  273,  279. 

appointment. 

of  appraisers,  115 

of  guardian,  43-45. 

of  trustee  of  non-resident  minor,  etc.,  265. 

of  guardian  ad  litem,  274,  27;t. 

appraisement. 

of  ward's  land  to  be  sold,  117. 

approval  of,  118. 
assignment. 

of  widow's  dower,  117,  118. 

approval  of,  118. 
attachment. 

citation  for,  259. 

journal  entry  as  to,  260. 

writ  of,  260, 
bond. 

when  freehold  surety  is  given,  34. 

when  mortgage  security  is  given,  35. 

when  additional  is  given,  in  case  of  sale  of  land,  119,  136-7. 

exceptions  to,  etc.,  169-178. 

additional,  when  guardian  completes  real  contract,  241. 

of  trustee  of  non-resident  minor,  idiot,  etc.,  266. 
certificate. 

of  guardian's  consent  to  ward's  marriage,  71. 

of  appraiser's  appointment,  115. 

of  judge's  approval  of  binding  out  ward,  213. 


332  INDEX. 

FORMS— Continued, 
citation. 

to  guardian  to  appear,  pay  money,  etc.,  55,  184. 

another  form,  56. 
journal  entry  as  to,  57. 
to  trustee  to  file  account,  259. 
complaint. 

against  guardian,  etc.,  54,  55. 

affidavit  to,  when  required,  55. 

consent- 

to  be  appointed  guardian  ad  litem,  279,  274. 

confirmation. 

of  sale,  order  of,  1MJ. 
decree.     See  Journal  Entry  ;  Order. 

for  sale  of  ward's  land,  121. 

for  private  sale,  122. 

deed. 

form  of  guardian's,  132-134,  281-2. 

exceptions. 

to  bond, 169. 

entry,  if  dismissed.  172. 

entry,  if  sustained,  172-3. 
indenture,  to  bind  out  ward,  211. 
inventory,  of  ward's  estate,  47. 

journal  entry. 

appointing  guardian,  when  court  selects,  43. 

appointing  guardian,  when  minor  selects,  43,  44. 

appointing  guardian,  when  minor  notified  and  fails  to  select,  44, 

appointing  guardian,  of  person  only,  44. 

of  resignation  of  guardian,  49. 

sustaining  citation  to  remove  guardian,  57. 

when  complaint  is  not  sustained,  58. 

for  costs.  58. 

of  notice  to  defendants,  sale  of  ward's  land   105 

approving  appraisement,  plat  and  surve}-,  118. 

also,  widow's  dower,  118. 

and  ordering  additional  bond,  118. 
for  order  of  sale,  124. 
of  filing  guardian's  account.  159. 
of  confirmation  of  guardian's  account,  164. 

same,  when  exceptions  filed  and  overruled,  164. 

same,  when  exceptions  filed  and  sustained,  165. 
of  adjournment  of  hearing  exceptions,  171. 
sustaining  exceptions  to  bond,  172.  17.'). 
dismissing  exceptions  to  bond,  172. 
of  filing  of  request  to  be  released  from  bond,  176, 
requiring  a  new  bond,  176. 
approving  new  bond.  176. 
new  bond  not  given,  or  not  approved,  177. 
approving  the  binding  out  ot  ward,  211. 
ordering  guardian  of  idiot,  etc.,  to  make  deed,  240. 
of  order  of  attachment  anainst  truste<  ,  260. 
of  removal  ot  trustee,  260. 
of  resignation  ot'  trustee,  263. 


index.  333 

FORMS—  Continued. 

of  appointment  of  trustee  for  non-resident  idiot,  lunatic  etc.,  265. 
of  guardian  ad  litem's  acceptance,  274. 
of  appointment  of  guardian  ad  litem,  274. 
of  ordering  notice  of  suit  for  sale  of  lands,  103. 
of  setting  time  of  suit  for  sale  of  lands,  103. 
letters. 

of  guardianship. 
motion.     See  Application;  Petition-. 
to  open   up  guardian's  settlement,  231. 

notice  of  same,  231. 
to  compel  trustee  to  file  account,  259. 

for  payment  of  ward's  money,  etc.,  to  foreign  guardian,  etc.,  268. 
mortgage. 

when  freehold  sureties  are  not  given  in  bond,  37. 
to  secure  balance  of  purchase  money,  134-5. 
'notice. 

to  defendants,  as  to  sale  of  ward's  lands,  106. 

affidavit  to,  L08,  184. 
by  publication,  form  of,  10'.),  184. 

proof  of  same,  109. 
of  sale  of  ward's  lands,  125. 
of  exceptions  to  bond,  170. 

of  surety's  application  to  be  released  from  bond,  175 
to  foreign  guardian  to  pay  money,  184. 
of  motion  to  open   up  guardian's  settlement,  231. 

when  made  by  publication,  232. 
of  application  to  appoint  guardian  for  drunkard,  250. 
of  filing  of  trustee's  account  for  settlement,  257. 
oath.     See  Affidavit. 

of  proposed  surety,  for  oral  examination,  33. 
of  guardian,  on  appointment,  45. 

another  form  of  same,  46. 

verifying  petition  to  sell  ward's  real  estate,  102. 

verifying  service  of  notice,  107. 

verifying  same,  when  made  by  publication,  108. 
to  obtain  service  by  publication,  108. 
of  appraisers,    116. 

to  application  to  sell  land  at  private  sale,  123. 
to  guardian's  account,  159. 
order.     See  Journal  Entry. 
of  appraisement,  113,  114. 
of  sale,  121,  122. 
of  reappraisement,  130. 
to  sell  at  fixed  price,  131. 
of  confirmation  of  sale,  132. 
to  give  notice  of  suit  for  sale  of  lands,  103. 
fixing  time  of  suit  for  sale  of  lands,  103. 
petition. 

of  guardian,  for  sale  of  ward's  real  estate,  99-102. 

verification  of,  102. 
of  guardian,  to  lease  ward's  real  estate,  140,  141,  2:;G-7. 

verification  of,  142,  237. 
to  compel  guardian  to  pay  money  due  on  settlement,  182-4. 
to  compel  conveyance  to  ward  of  land  contracted  for  by  ancestor,  227. 
as  to  completion  of  real  estate  contract  of  idiot,  lunatic,  etc.,  239. 


334  INDEX. 

FORMS —  Continued. 

to  transfer  effects  of  ward  to  non-resident  guardian,  administrator,  etc., 
268. 

precipe, 

for  order  of  sale,  124. 

release. 

of  ward  to  guardian,  167. 

of  surety  from  bond,  176. 

request  for,  175. 
removal. 

of  guardian,  57,  58. 

of  trustee,  260. 
request. 

to  be  released  from  bond,  175. 

resignation. 

of  guardian.  49 
of  trustee,  26;!. 

return. 

to  summons  or  other  legal  notice,  107. 

to  order  of  sale,  when  sale  has  been  made,  128. 

report. 

when  sale  is  made,  125. 

when  no  sale  is  made,  130. 

of  private  sale,  131. 

affidavit  in  such  case,  131. 
revocation 

of  guardian's  appointment,  57. 

of  trustee's  appointment,  260. 

sale. 

decree  for,  121,  122. 
statement. 

of  ward's  estate,  41 
verification.     See  Affidavit. 

to  applicant's  statement  of  ward's  estate,  42. 

to  widow's  answer,  waiving  dower,  etc,  112. 

to  guardian's  petition  for  leave  to  sell  ward's  real  estate,  102. 

to  guardian's  petition  for  leave  to  lease  ward's  real  estate,  142,  237, 

to  petition  to  compel  guardian  to  pay  money,  183,  184. 

to  petition  as  to  real  contract  of  ward's  ancestor,  etc.,  228,  240. 

to  petition  as  to  transfer  of  ward's  money,  etc.,  268 

FRAUD—  .,;.-■,.- 

final  settlement  will  be  opened  on  account  of,  160-166. 

guardian  liable  on  bond  for,  179. 

rights  of  claimants  to  land,  nol  guilty  of,  196. 

decree  obtained  under  answer  of  guardian  ad  litem  impeachable  for.  '1 1  K. 

FRAUDULENT  CONDUCT— 

guardian  may  be  removed  for,  53. 

presumed,  if  guardian  or  trustee  purchese  trust  property, 

in  assigning  dower,  remedy  of  minor  heir,  112. 

FREEHOLDERS— 

sureties  on  bond  must  be,  30,  32. 

appointed  appraisers  of  real  estate  to  be  sold,  113,  244. 

appointed  to  report  as  to  leasing,  etc.,  ward's  real  estate,  142,  143a,  248. 

appointed  as  commissioners  for  partition,  188. 


80-81  n. 


INDEX.  335 

FUNDS.    See  Money. 

of  ward  may  be  invested,  how,  64-68,  83  n.,  153,  248,  269,  290. 

GAMBLING— 

effect  of,  in  ward's  premises,  143,  295. 

GENERAL  PRINCIPLES— 

some  governing  guardians  and  trustees,  summarized,  73-90. 

references  to,  are  made  where,  74. 

are  binding  in  Ohio,  generally,  73. 

as  affecting  married  women's  right  to  be  guardian   297-312. 

GIFT— 

from  ward  to  guardian  how  treated,  82,  83. 
of  real  estate,  by  drunkard,  invalid  when,  251. 

GIRL.    See  Minor;  "Ward;  Child. 

may  be  sent  to  industrial  home,  etc.,  when,  207e,  215,  217. 

GOVERNMENT  BONDS— 

when  ward's  money  must,  or  may,  be  invested  in,  66,  68,  269. 
as  to  registered,  of  ward,  296-296c. 

GUARDIAN  — 

of  minors — and  generally.     See  other  kinds,  below, 
definition  of,  2. 
different  kind  of,  2-6. 

stands  in  place  of  parent,  to  some  extent,  2,  84,  89,  90  n,,  217. 
derives  his  power  from  what,  17  n. 
non-resident  can  not  be,  23,  28,29,  51. 

nor  minor,  29. 

nor  idiot,  29. 

nor  lunatic,  etc.,  29. 

nor  person  adversely  interested,  24-25  n. 

can  married  woman  be,  25  n.,  30,  50,  297. 

provisions  as  to  this,  in  Ohio,  30,  230,  311. 
outside  of  Ohio,  301-310. 

if  guardian  becomes  such,  removal  of.  29,  50,  301,  302,  311. 
must  file  statement  of  ward's  estate,  41. 

form  of  statement,  41. 
continues  in  office,  how  long,  48,  50,  61  n.     See  Removal  of,  below, 
effect  of  removing  from  state,  51-52. 

from  county,  23,  53.  » 

various  ways  of  terminating  powers  of,  25,  26,  48,  49,  50,  52,  61  n. 
right  of  minor  to  select,  25,  26,  249. 
notice  to,  before  removal.     See  Removal  of,  below, 
is  ward's  mere  agent,  61  n. 
can  be  released  only  how.  61  n. 

using  ward's  money,   not  breach  of  bond,  when,  66  n. 
is  the  judge  of  what  are  necessaries  for  ward,  69  n. 
building  association  stock  may  be  paid  to,  69. 
as  to  control  of,  over  ward's  marriage,  70-72. 

form  ot  consent,  in  such  case,  71. 
court  of  common  pleas  will  direct,  in  doubtful  matters,  how,  72. 
is  a  trustee,  73  n. 

is  subject  to  what  general  principles,  decisions,  etc.,  73,  74. 
rule  as  to  proper  care  and  diligence,  74,  75,  76,  60-61  n.,  66  n.,  67  n. 
not  presumed  to  know  the  law,  if  advice  of  counsel  followed,  76. 
is  responsible  for  acts  of  attorney  or  agent,  when,  60  n.,  76. 
is  responsible  for  money  in  bank,  when,  74,  75,  76,  60-61  n.,  66  n.,  67  n. 
is  responsible  for  money  paid  by  mistake  to  wrong  person,  76,  77. 


336  INDEX. 

TrUARDIAN—  Continued. 

not  permitted  to  make  profit  from  nor  speculate  with  trust  fund,  77,  78. 

remedy  of  ward  against,  in  such  case,  77,  78. 
when  capital  may  be  infringed  on  to  maintain  ward,  79. 
contracts  between,  and  ward,  how  treated,  82. 
gifts  from,  ward  to,  how  treated,  82,  83. 
wrongful  conveyances  by,  to  third  person,  83,  84. 
purchase  of  property  with  ward's  money.  81,  84. 
chargeable  with  interest,  when,  and  how  much,  66-67  n.,  79,  81,  84. 
costs  of  proper  litigation  allowed  to,  86. 

including  attorney's  fees,  86. 

when  such  expenses   not  allowed,  86  n. 
death,  removal,  etc.,  of  one  of  two  or  more,  does  not  affect  survivors,  89. 
as  to  service  upon,  or  by,  for  ward,  of  notice  of  sale,  etc.,  103,  105. 
is  ward's  antagonist  in  theory,  when,  104. 
of  insane  widow,  may  act  for  her,  111. 
as  to  sale  of  ward's  land  by.     See  Sale. 
does  not  warrant  title  conveyed,  138. 

if  he  does,  he  binds  himself,  not  his  ward,  138. 
penalty^,  for  not  listing  property  for  taxation,  etc.,  145. 
rule  as  to  his  acting  as  ward's  attorney,  153-154  n. 
account  of,  its  form,  156-9. 

is  liable  for  debts  due  ward,  unless,  152  n.,  158  n.,  179,  182, 
final  account  of,  must  show  what,  158. 
notice  of  filing  account  of,  must,  be  published,  161. 
examination  of,  as  to  accounts  filed,  162. 
settlement  of,  with  ward,  163-6. 
is  liable  for  fraud  or  neglect,  179. 

and  for  unjust  judgment  against  ward,  when,  179. 

and  for  waste,  when.  179. 
liability  of,  does  not  depend  on  bond,  179-180. 
suits  against,  brought  when  and  where,  179,  180,  181,  182. 
pleadings  of,  must  show  what,  182 

bankruptcy  of,  does  not  affect  liability  of,  on  bond,  182. 
special  proceedings  to  compel  payment  of  money  by,  182. 
trustees  of  penal,  reformatory,  etc.,  institutions  are,  when.  216,  217,  218. 
liabilities,  duties,  etc.,  of,  as  to  sale  of  intoxicating  liquors,  221-225. 
liabilities,  duties,  etc.,  of.  under  "imim'  laws,  91,  143. 
liabilities,  duties,  etc.,  of,  as  to  militia  fines,  287. 
who  can  not  testify  against,  etc  ,  291-2. 
as  to  restricting  testimony  of,  or  auainst,  generally,  291-2. 
as  to  right  of  married  woman  to  be,  in  this,  and  other  states,  30,  297- 
312. 

appointment  oj. 

may  be  by  will,  5,  287.     See  Testamentary,  below. 

but  not  by  deed.  5. 
must  be  made  in  what  county,  7,  8,  17,  21,  22,  23. 
is  by  probate  court,  5,  7,  8,  16,  17,  25,  42,  50,  230. 

and  usually  only  when  child  has  property,  5-6,  90  n. 
who  can  not.  be  appointed,  28-30,  50,  297-312. 
who  should  be  appointed,  24  n. 
powers  of  probate  courts  as  to,  5,  7,  8-10  n.,  20,  21-23. 

of  chancery  courts,  5,  6  n.,  300-310. 

of  common  pleas  courts,  7  n.,  8-10  n.,  12,  20,  21-23. 
application  for,  31,  32. 

bond,  mortgage,  oath,  abstract  of  title,  etc.,  required,  31-2. 
record  of,  10,  11,  42,45. 


INDEX.  337 

GUARDIAN—  Continued. 

what  is  effective  part  of,  17  n.,  45,  46  n. 
letters  of,  not  essential,  17  n.,  46  n. 
complete,  when,  46. 
void,  when,  17,  21. 

should  be   made,  when,  42,  50,  57,  177. 
journal  entries  as  to,  43-45. 
first  thing  to  do  after,  47. 
is  in  force  till  when,  48,  49,  50,  51,  52. 
of  idiot,  lunatic,  imbecile,  etc.,  230. 
appeals  as  to,  may  be  taken,  280. 
account  of.      See  Account,  Final  and  Other. 
probate  court  has  jurisdiction  over,  7. 
must  be  settled  in  common  pleas  court,  if  probate  judge  is  interested 

in,  12. 
superceded  guardian  must  settle,  26. 
when  female  guardian   marries,  she  must  settle,  50. 
all  guardians  of  person   and  estate  must  render  full,  when,  63,  150. 
all  guardians   of  person   only,  must  render  full,  when,  69,  150. 
if  ward  dies,  guardian    must  settle,  88. 
settlement  of  between  guardian  and  ward,  163,  167. 
guardian  must  exercise  good  faith  as  to,  163  n. 
guardian  of  idiot,  lunatic,  imbecile,  etc.,  must  settle,  243. 
manner  of  keeping,  151-160. 
should  be  clear  and  easily  understood,  152. 
blank  book  for,  152. 
must  be  recorded,  11,  152,  161, 

judge  or  clerk  can  not  prepare,  for  guardian,  11,  12. 
when  guardian  dies,  who  must  render,  51. 
court  must  enforce  filing  of,  53,  63,  161,  256-8. 
who  may  compel  rendering  of,  how,  63,  256-7. 
guardian  must  pay  costs  of  suit  to  compel  filing  of,  86vn. 
of  money  in  bank,  etc.,  how  to  keep  account  of,  74-75. 
object  of  account,  and  how  made.  151,  152,  153  n.,  154-159. 
of  each  ward  should  be  separate,  152. 

form  of,  156-7,  254-6. 
what  final  account  must  show,  158,  163. 

must  be  presented  to  court,  when,  how,  etc.,  163. 
must  be  sworn  to,  how,  etc.,  159,  254,  256,  257. 
notice  of  filing  of,  must  be  published.     See  Notice,  161,  256. 

cost  of  notice,  how  apportioned,  161. 
exceptions  to  may  be  filed,  by  whom,  etc.,  161,  162,  255-6. 

hearing  of  exceptions,  161-2,  255-6. 
is  only  an  ex  parte   statement,  when,  164  n. 
settlement  of,  is  final  when,  165,  166  n. 
is  a  settlement  within  meaning  of  the  law,  when,  165  n. 
appeal  from   settlement  of,  may  be  had,  when,  280. 
journal  entry  as  to  filing  of,  157. 

maybe  reviewed  when,  165-6. 
journal  entries    confirming  or  rejecting,  164-5. 
as  to  testimony  concerning,  in  certain  cases,  291-2. 

bond  of.     See  Bond. 

must  give  bond  before  he  can  act,  17  n.,  30-32,  45-46  n. 

may   give    mortgage    security,   instead   of  freehold   sureties,   31.     See 

Mortgage  ;   Bond. 
may  be  required  from  testamentary  guardian,  27,  31,  32. 


338  INDEX. 

GUARDIAN-  Continued. 

joint  bond  for  two  or  more  wards  may  be  given,  32. 

fees,  etc.,  in  such  cases.  32. 
what  informalities  will  not  render  it  invalid,  36. 
signers  of,  liable  for  what,  32  n.,  178-184. 

for  how  long,  84. 
application  of,  can  not  be  enlarged  by  court,  32  n. 
may  be  signed  in  blank,  36. 
when  blanks  in  must  be  filled,  36. 

presence  or  consent  of  signers  not  necessary  to  this,  36. 
why  should  be  prepared  with  care,  36. 
should  be  signed  in  court,  why,  87. 
form  of,  if  with  sureties,  34. 
form  of,  if  with  mortgage  security.  35. 

suit  on,  may  be  brought,  if  guardian  misuses  trust  fund,  79,  81. 
must  be  brought  within  what  time,  180. 

may  be  required  to  be  changed,  if  one  joint  guardian  dies,  etc.,  89. 
additional,  when   land  is  to  be  sold,  118,  119,  234,  238. 

form   of  such   bond,  119. 

form  of  such,  186. 

if  required  and   not  given,  what,  137. 

if  not  required,  what,  137. 
additional,  as  to  real  estate  contracts,  238. 
exceptions  to,  proceedings  on,  etc.,  169-178. 
what  about  joint,  178. 
liability  of  sureties  on.     See  Sureties. 
suits  on,  by  whom  brought,  178. 
additional  by  foreign  guardian  who  sells  land,  136. 
additional  required  when  else,  171,  172,  172  n. 
liability  of  sureties   on,  82  n.,  83  n.,  172  n.,  177,  178,  179,  180. 
guardian's  liability  does  not  depend  on   179-180. 
signors  of  estopped  by  what  recitals.  179  n. 
validity  of  not  questionable,  when,  179  n,,  280. 
bankruptcy  of  guardian  does  not  affect.  182. 
married  woman  may  give,  when,  230,  311. 

her  power  to  give,  generall}',  30,  297-312,  311. 
guardian  need  not  give  appeal  bond,  when,  281-283. 
exceptions  to,  and  proceedings  in  such  case,  169-174. 
compensation  oj. 

for  money  advanced  to  pay  taxes,  146. 
for  trouble  and  time  in  paying  taxes,  146. 
amount  of,  generally,  159-161. 
none  allowed,  when,  L61. 
when  the  court  fixes  amount  of,  163. 
of  guardian  ad  litem,  233. 
of  certain  trustees,  233. 
death  of. 

has  what  effect,  48,  51,  178,  232. 
oath  of.     See  Oath;  Affidavit. 

faithfully  to  discharge  duties  of,  31,  45,  46. 

form  of,  45,  46. 
to  accounts,  must  be  made,  63,  157,  159,  161,  162. 

form  of,  157. 
examination  under,  as  to  accounts,  filed,  162. 
to  inventory  62. 
to  statement  of  ward's  estate,  42. 


INDEX.  339 

GUARDIAN—  Continued. 

to  petition  for  leave  to  sell  real  estate,  102. 
to  petition  for  leave  to  lease  real  estate,  142,  237. 
to  petition  as  to  real  contract  of  ward's  ancestor,  228,  24C. 
to  petition  as  to  transfer  of  ward's  money  to  non-resident,  268. 
as  to  right  to  collect  interest  on  ward's  bonds,  294. 
powers,  rights,  and  duties  of. 

powers  continue  how  long,  2,  3,  25,  26,  48,  50. 
as  to  sale  of  land,  under  old  law,  25  n.. 

generally,  under  present  law.     See  Sale. 
rights  of,  in  proceedings  for  removal  of,  57. 
of  guardian  of  person  and  estate,  60-68. 
rule  as  to  proper  diligence  and  care  by,  60-62  n.,  66  n.,  67  n.,  74,  75,  76, 

86,  90  n.,  74-76  n. 
is  liable  only  for  property  accessible  to  himself,  61  n. 
is  ward's  mere  agent,  61  n. 
duty  of,  as  to  pensions,  61  n. 
effect  of  his  encumbering  ward's  land,  62  n. 
as  to  his  converting  land  scrip,  62  n. 

will  be  held  responsible  for  loss  of  ward's  money,  when,  66  n.,  67,  79. 
rights  of,  to   ward's  custody,  education,   estate,  etc.,  summarized  and 

compared,  70. 
consent  of,  to  ward's  marriage  necessary  when,  70. 
rights  of  foreign  guardian.     See  Foreign,  below, 
entitled  to  directions  of  court,  when  in  doubt,  72-3. 
as  to  purchase  of  ward's  property  by,  80,  81. 
as  to  purchase  of  property  by,  with  ward's  money,    81. 
as  to  ward's  labor  and  services,  84-85. 
parent's  and  guardian's  respective  obligations  to  maintain  and  educate 

ward  discussed,  87,  88 
if  one  or  two  or  more  dies,  is  removed,  ere,  survivors  not  affected,  89. 
as  to  ward's  character,  training,  etc.,  89,  90  n. 
sale  of   ward's  real    estate   by,  95-138.      See  As   to   Sale  of  Ward's 

Property,  below 
generally  suggests  appraisers'  names  to  court,  114. 
as  to  plat  for  town  lots,  121. 

guardian  must  sell  the  land,  in  person  or  by  auctioneer,  126. 
as  to  final  settlement  of,  with  ward,  163,  165. 
as  to  partition  of  lands,  186-195. 
as  to  lands  adversely  held  by  ward,  196-200. 
as  to  lands  claimed  from  ward,  196-200. 

as  to  roads,' streets,  etc.,  affecting  ward's  land  or  lots,  201-204. 
as  to  schools  and  school  laws,  as  affecting  ward,  205,  207. 

guardian  fined  for  neglecting  duties  as  to,  206,  207. 
as  to  binding  out,  or  apprenticeship, , of  ward,  208-213. 
as  to  sending  ward  to  reform  school,  214. 

or  to  industrial  home,  215. 

or  to  children's  home,  216-218. 

or  to  house  of  refuge,  218-220. 

may  apply  for  release  of  ward  from  such  place,  220. 
as  to  sale  of  intoxicating  liquors  on  ward's  premises,  224,  221-225. 
as  to  real  contracts  of  ward's  ancestor,  etc.,  226-8,  238-242. 
of  idiot,  insane  person,  etc.,  is  guardian  of  ward's  children  also,  230. 
as  to  lease  of  ward's  property,  139-142,  235-8. 
as  to  appeals,  280-284. 
as  to  fixing  corner  or  line  of  ward's  real  estate,  286. 


340  INDEX. 

GUARDIAN—  Continued, 

as  to  taking  ward's  real  estate  for  public  use,  201-4,  286-7. 

as  to  adopted  child,  287. 

as  to  sale  of  entailed  estates,  289-291. 

as  to  testifying  in  certain  cases,  as  to  certain  matters,  291-2. 

as  to  collecting  interest  of  registered  government  bonds,  296- 

can  change  residence  of  ward    when,  18. 

can  accept  deed  for  ward,  61  n. 

can  be  released  after  accepting  office,  only  how.  61  n. 

can  set  off  ward's  labor  and  services  against  what  claims.  84,  85. 

can  do  nothing  about  partitioning  deceased  ward's  land,  88,  89. 

can  receive  only  money  for  land  sold,  96  n. 

can  be  sued  where,  181. 

can  act  for  ward,  as  to  taking  property  for  public  use,  201-4,  286-7. 

can  not  release  debt  due  ward,  61  n. 

but  can  compound  it,  64. 
can  not  delegate  his  authority,  except,  60  n. 
can  not  lend  money  to  co-trustee,  66  n. 

nor  on  personal  security,  66  n. 
can  not  derive' profit  from  use  of  trust  fund,  77,  78. 
can  not  speculate  with,  nor  use  trust  fund  in  business,  77,  78. 

but  see  251  n. 
can  not  purchase  ward's  property,  except,  80,  81. 

when  such  purchase  sustained,  80-81  n. 
can  not  contract  with  ward,  generally,  82. 
such  contracts  regarded  how,  82. 

can  not  use  his  influence  over  ward  to  latter's  injury,  82. 

can  not  receive  ward's  labor  and  services,  unless,  84,  85. 
nor  proceeds  of,  without  accounting  for,  84. 

can  not  receive  his  own  note  for  land  sold.  96  n. 
sale  may  be  set  aside,  if  he  does,  96  n. 

can  not  bind  ward  by  warranty  of  title  of  land,  120  n. 

can  not  sue  ward,  nor  be  sued  by,  until,  162. 

can  not  try  suit  as  justice  of  the  peace,  when,  287. 

may  be  removed  for  what.     See  Removal  of.  below. 

may  have  custody  and  tuition  of  ward,  when,  60. 
and  management  of  estate,  60. 

may  act  by  attorney  or  agent  when,  at  what  risk,  etc.,  60  n. 

may  loan  money  on  first  mortgage  security,  when,  65,  66. 

may  buy  what  bonds   66,  68. 

may  buy  real  estate,  when,  66. 

may  sell  real  estate,  when,  66. 

may  select  school  or  university  for  ward  to  attend,  66  n. 

may  invest  trust  funds,  how,  generally,  66-68. 

may  bring  action,  to  get  instructions  of  court,  72-3. 

may  deposit  money  in  bank,  how,  74,  75,  60  n. 

may  infringe  on  ward's  capital,  when,  79,  80. 

may  buy  ward's  property,  when,  80-81  n. 

may  compel  ward  to  labor,  when,  84. 

may  drive  from  premises  improper  associates  of  ward,  90  n. 

may  sell  ward's  property,  for  what,  etc.,  95-97. 

may  act  jointly  with  other  guardian,  in  such  sales,  97. 

mav  make  proof  of  publication  ;  form  of,  110,  129. 

may  lease  ward's  land,  when,  139-1436,  235-8. 

may  sell  ward's  land  at  private  sale,  when,  121.     See  Sale. 

may  sell  ward's  land  in  parcels,  but,  121  n.,  125,  126,  234. 

mav  convert  to  administrator's  sale,  293. 
may  assign  dower,  how,  293. 

may  do  what,  as  to  railroad  stock,  294. 


INDEX.  341 

GU  ARDI A  N—  Continued, 

may  obtain  peace  warrant  in  ward's  behalf,  296. 

may  be  required  to  give  additional  security,  when,  118,  136,  234. 

may  soil  lands  of  ward  to  pay  taxes,  146. 

may  act  as  ward's  attorney,  when,  153-154  n. 

may  be  examined  under  oath,  as  to  accounts,  162. 

may  be  sued,  where,  181,  182. 

may  sue  in  his  own   name,  182. 

may  be  compelled  to  pay  money  due,  how,  182-184. 

may  bind  ward  out  to  service,  when,  how,  etc.,  208-213. 

may  send  ward  to  reform  school,  when,  211. 

may  sell  propert}'  of  insane,  idiot,  etc.,  when,  how,  etc.,  233-235, 

at  private  sale,  when  only,  234. 
may  be  authorized  to  cany  on  business,  251  n. 
may  fix  corner  or  line  of  ward's  real  estate,  how,  286. 
must  settle  his  accounts,  when,  26,  49.  52. 
must  get  notice  of  intended  removal  of,  53,  54,  58. 
must  collect  debts,  securities,  etc.,  when,  60-61  n.,  64,  158  n, 
must  not  invest  money  on  personal  security,  61  n. 
must  collect  debt,  etc.,  by  suit,  when,  61  n. 
must  file  inventory  of  ward's  estate,  53,  62. 

and  of  yearly  rents,  41,  62. 

penalty  for  not  doing  so,  62. 
must  manage  ward's  estate,  how,  62. 

must  render  accounts  of  receipts  and  expenditures,  when  and  how,  50, 
53,  63,  87,  150-159. 

penalty  for  not  doing  so,  63. 

presumptions  against  him,  if  he  does  not,  63  n. 
must  settle  fully,  and  pay  over  to  proper  person,  64,  87,  150-1. 
must  pay  ward's  debts,  or  compound  them,  64.     See,  also,  86. 
must  appear  for  and  defend  ward  in  all  suits,  64,  64  n. 
must  educate  ward,  when,  60,  64,  65  n.,  69,  70,  85,  86,  89,  90  n. 
must  invest  ward's  money,  how,  and  how  soon,  64-68- 
must  pay  interest  on  ward's  money,  when,  66-7  n.,  68  n.,  79,  81,  84. 

how  calculated,  67. 
must  adjust  and  settle  assets  received  from  ex'r  or  adm'r,  67. 

such  adjustment  must  be  approved  by  court,  67. 

with  such  approval,  may  hold  such  assets,  67. 
must  obey  and  perform  all  orders  of  court,  67. 
must  give  consent,  before  ward  can  marry,  when  and  how,  70-72. 

form  of,  etc.,  in  such  case,  71. 
must  deposit  money  in  bank,  how,  if  at  all,  74. 

must  account  to  ward  for  all  profits,  if  any,  made  out  of  trust  fund,  77-79. 
must  pay  interest  on  trust  fund,  when,  and  how  much,  6,  79. 
must  pay  costs  of  suits,  when,  86  n.,  173,  174. 
must  be  allowed  such  costs,  when,  86,  173,  174. 
must  not  allow  ward  to  manage  or  dispose  of  his  estate,  89. 
must  see  to  repairs  of  ward's  property,  90. 
must  always  regard  ward's  best  interests,  90  n. 
must  make  oath  to  his  petition  for  sale  of  ward's  land,  102. 
must  give  notice  toward  of  filing  of  such  petition,  102. 
must  be  served  with  notice  for  ward,  when,  104. 
must  have  guardian  ad  litem  appointed,  when,  110.     See  64  n. 
must  give  additional  bond,  before  selling  land,  US. 
must  issue  precipe  for  order  of  sale,  124. 
must  sell  the  land,  in  person  or  by  auctioneer,  12(1. 
must  make  report  of  sale,  127. 
must  make  affidavit  as  to  manner  of  private  sale,  131. 

23 


342  INDEX. 

GUARDIAN—  Continued. 

must  pay  taxes  on  ward's  land.  144. 

must  list  ward's  lands  for  taxation,  when,  where,  how,  144,  145,  147. 

and  personal  property,  146. 
must  pay  taxes  out  of  his  own  funds,  if  necessary,  145-6. 
must  charge  himself  with  what,  in  his  account,  152-153. 
must  account  how,  generally,  152-161. 
must  make  every  reasonable  effort  to  collect  debts,  155. 
must  make  out  his  account,  how,  etc.,  150-159. 
must  do  what,  as  to  bad  debts,  154-5,  159. 
must  pay  loss,  personally,  when,  125. 
must  make  affidavit  to  account,  159. 
must  pay  costs  of  notice  of  filing  accounts,  161. 
must  settle  debts  due  from  ward  to  him,  how,  162. 
must  make  full  disclosures,  and  act  in  good  faith,  163  n. 
must  pay  balance  due  on  settlement,  to  whom,  when.  103,  165. 
must  present  final  account  to  court,  when  and  how,  163. 
must  be  notified  of  exceptions  to  bond,  169,  174. 
must  appear  before  court,  when,  in  such  case,  169-70,  174. 
must  be  notified  of  surety's  application  to  be  released  from  bond,  174-5. 
must  be  notified  as  to  proceedings  concerning  roads  affecting  ward,  201. 
must  do  what,  as  to  such  roads,  streets,  etc.,  201-21)  1. 
must  send  ward  to  public  school,  when,  205-207/. 
must  do  what  as  to  binding  out  ward,  208-213,  209. 
must  do  what,  as  to  sale  of  liquors  on  ward's  premises,  221-225,223. 
must  do  what  as  to  real  contracts,  etc.,  226-8,  238,  242. 
must  defend  suits,  etc.,  of  ward,  232-3. 
must  collect  fireman's  pension  fund,  when,  287. 
must  select  articles  at  appraisement  of  decedent's  effects,  293. 
must  not  testify  as  to  what,  etc.,  291-2. 
should  use  only  income  of  ward's  estate,  unless,  79. 
should  be  allowed  costs  of  litigation,  86. 
including  attorney  fees,  when,  86. 
should  not  be  allowed,  when,  86  n. 
should  have  ward  learn  a  trade,  profession  or  business,  90. 
should  see  after  ward's  character,  morals,  etc.,  89,  90. 
should  have  service  of  legal  notice  made  on  ward,  how,  104,  107-110. 
should  keep  his  accounts,  how,  152. 
should  charge  himself  with  what,  152,  153. 
should  credit  himself  with  what,  153. 
should  take  receipts  tor  all  payments,  155. 
should  settle  with  ward,  when,  163. 
should  take  ward's  receipt,  when,  163,  165. 
should  make  written  report  as  to  insane  widow's  dower,  235. 
should  not  be  appointed  guardian  ad  litem,  when,  272  n. 

removal  of. 

probate  court  removes,  8,  48,  49,  52.  54,    57. 

may  be  removed,  for  what,  49,  54,  57,  62,  84,  177,  299. 

removing  from  state  of  itself  removes,  51. 

so  does  marriage  of  female  guardian,  50,  301,  302. 

so  does  marriage  of  female  ward,  50. 
removal  from  county  is  good  cause  for,  23,  53. 

so  is  drunkenness,  53,  103. 

and  neglect  of  duty,  53,  54,  84. 

and  not  reasonably  educating  ward,  85. 

and  incompetency,  53. 


index.  343 

GUARDIA  X—  Continued. 

and  fraudulent  conduct,  53. 

and  not  filing  inventory  or  account,  53,  62. 
or  bond,  177. 
when  removal  ward  from  state  will  lead  to,  52. 
if  removed,  letters  of,  must  be  expressly  revoked,  48  n. 
what  notice  must,  first  be  given,  53,  54,  57. 

form  of,  and   how  served,  56,  57. 
proceedings  for  removal,  56-58,  169-178. 
when  he  should  not  be  removed,  57,  177. 
resignation  of. 

may  be  accepted  by  court,  vhen,  49. 
should  not  be  accepted  till  full  account  is  filed,  49. 
form  of  resignation,  49. 
form  of  journal  entry,  accepting,  49-50.. 
sale  of  icard's  property  by.     See  Sale. 
personal 

wrongful,  ward's  remedies,  etc.,  83,  84. 
ward  can  not  make,  89. 
as  to  laud  warrant.     See  Land  Warrant. 
real  estate.     See  Real  Estate  ;  Probate  Court. 
can  not  be  had,  without  court's  approval,  66,  95. 
guardian  or  trustee  can  not  buy,  80,  81. 

some  exceptions  to  this,  81-82  n. 

presumptions  in  such  cases  against  guardian,  81  n. 
purchase  of,  with  ward's  money,  81,  82. 
as  to  wrongful,  83,  84. 
ward  can  not  make,  89. 
must  be  sold,  when  and  what  for,  95-97. 
joint  application  for,  valid  when,  96-97. 

invalid,  96  n. 
formerly,  was  by  authority  of  common  pleas  court  only,  96  n. 
ma}r  be  set  aside,  if  what  pay  is  received/ 96  n. 
sale  void,  if  law  not  strictly  complied  with,  96  n. 
jurisdiction  of  courts,  as  to,  97. 
duties  of,  generally,  as  to,  92-138. 
guardian  generally  suggests  appraisers,  114. 

sold  by  guardian,  sometimes  recoverable,  when,  how,  etc.,  197,  196-199. 
of  insane,  idiot,  etc.,  when,  why,  how,  etc,  233-235. 
by  foreign  guardian. 

application  for,  where  made,  135,  136. 

proceedings  in  such  case,  136. 
additional  security  required,  when,  136. 
lease  of  ward's  property  by. 

may  lease  for  three  years  or  less,  without  applying  to  court,  139. 
may  get  leave  of  court  to  lease  tor  what,  139-1436. 

two  or  more  may  unite  in  one  application,  140. 

how  to  proceed  in  case  of  long  lease,  140-143. 
may  make  what  improvements,  in  such  cases,  140-143. 
liability  for  leasing  for  sale  of  intoxicating  liquors,  224. 
ad  litem. 

definition  of,  270. 

is  an  officer  of  court,  not  party  to  suit,  271. 

defense  of  minor  must  be  by,  110,  271,  276,  278. 

who  can  not  be  appointed,  272. 

when  to  be  appointed  on  minor's  application,  272,  279. 

when,  on  plaintiff's  or  friend's  application,  272-3,  279. 


344  INDEX. 

GUARDIAN—  Continued. 

form  of  application  for  appointment,  273. 

how  appointed,  110,  233,  271. 

at  what  stage  of  trial,  271. 

effect  of  appointing  too  soon,  27L 

effect  of  not  appointing  at  all,  272  n._ 

appointment  of.  to  minor  not  a  party,  is  void,  273  n. 

irregular  appointment  of,  voidable,  not  void,  273  n. 

appointment  of,  not  a  more  form,  276. 

must  be  notified  of  appointment,  and  accept  how,  273. 

proper  rule  as  to  manner  of  appointing  and  accepting,  273. 

court  will  not  appoint,  without  written  consent  of  appointee,  273  n. 

when  regular  guardian  may  act  as,  64  n.,  277  n. 

form  of  acceptance,  274,  279. 

form  of  entry  of  appointment,  274,  270. 

none  appointed  in  criminal  matters,  270  n. 

court  acts  as,  in  such  cases,  270  n. 
effect  on,  of  minor's  coming  of  age,  271  n. 
as  to,  in  bastardy  proceedings,  271  n. 
powers  of  courts  to  appoint  discretionary,  271  n. 
acts  as  to,  by  lower  courts,  will  not  be  reversed,  271  n. 
acts  of,  iree  from  fraud,  bind  infant,  271  n. 
why  probate  court  appoints,  271  n. 
is  appointment  of  necessary,  in  sale  of  ward's  lands,  110. 

"is  good  practice  to  do  so,  111,  110  n.  >        ,-,,„»«» 

as  to  appointment  of,  in  executor's  or  administrator  s  sale  ot  land,  27b-7. 
duties  of,  as  to  insane  owner  of  dower,  244. 
duties  of,  generally,  233,  275-9. 
can  not  waive  service  of  summons  or  notice,  274. 

previous  law  as  to  this^etc,  274  n. 
when  he  should  answer,  275. 
effect  of  his  admissions,  275,  276. 
can  not  waive  any  of  ward's  rights,  275. 
form  of  his  answer,  277. 

no  verification  of,  needed,  277. 
what  is  equivalent  in  its  effect,  in  answer,  to  general  denial,  277  n. 
decree  under  answer,  impeachable  for  fraud,  278. 
expenses  of  should  be  paid,  278. 
compensation  of,  278. 
as  to,  in  suits  before  magistrates,  278-9. 

of  drunkards. 

must  be  appointed  when,  249. 

how,  249,  250.  0.Q 

will  also  be  guardian  of  drunkard  s  minor  children,  unless,  249. 
power  to  appoint,  is  constitutional,  250  n. 
what  laws  applicable  to,  249. 
notice  of  application  for  appointment  of,  249. 

form  of  notice,  250. 

how  served,  250. 
authority  of,  terminates  when,  251. 

foreign. 

resident  guardian  removing  to  other  state,  61. 

determines  his  guardianship,  51.  _  . 

when  ward's  removing  to  other  state  gives  foreign  guardian   right  to 

ward's  estate,  51. 
foreign  guardian  must  do  what,  in  such  case,  51. 


INDEX.  345 

GUARDIAN—  Continued. 

has  no  right  to,  unless,  51. 

may  obtain    effects    of  non-resident  ward  from  resident  executor,  ad- 
ministrator, etc.,  when  and  how,  72. 
proceedings  of,  to  sell  ward's  real  estate,  135-137. 
may  be  served  with  notice  by  publication,  181,  184. 
how  compelled  to  pay  money  due  on  settlement,  182-4. 
powers  of,  as  to  partition  of  ward's  estate,  187,  188. 
may  receive  money  and  effects  of  ward  from  resident  trustee,  267. 
rights  of,   generally,  285-6. 
must  give  bond,  in  certain  cases,  243. 
of  the  estate. 

compared  to  curator,  under  civil  law,  6. 
of  child  of  divorced  parent,  9-10  n. 
appointment  of,  23,  24. 
chosen  by  minor  25. 

executor  or  administrator  can  not  be,  28. 
statutory  duties  of,  68-9. 

must  pay  ward's  bills,  on  order  of  guardian   of  person,  69. 
has  nothing  to  do  with  custod}-  or  education  of  ward,  70. 
may  often  allow  fixed  sum  for  year's  maintenance  of  ward,  85-6. 
may  lease  ward's  lauds,  how,  139,  140. 
as  to  liability  of,  for  badly  leasing,  139  n. 

as  to  power  of  married  woman  to  be,  30,  50,  303,  306,  297-312. 
of  the  person. 

compared  to  tutor  under  civil  law,  6. 

appointment  of,  23,  24. 

chosen  by  minor,  25. 

executor  or  administrator  may  he,  28. 

form  of  journal  entry  appointing,  41. 

remarks  concerning  requisites  of,  45. 

statutory  duties  of,  69. 

must  be  paid  for  what,  by  guardian  of  estate,  69. 

must  protect  and  control  person  of  ward,  69,  70. 

and  maintain  ward,  when,  69,  70. 

and  educate  ward,  when,  69,  70.     See  Education;  Ward. 

and  obey  all  orders  of  court  touching  guardianship,  69. 
has  custody  of  ward,  when,  69,  70. 

as  to  married  woman's  right  to  be,  30,  50,  303,  306,  297-312. 
of  person  and  estate. 
powers  of,  24,  60-68. 
must  file  inventory,  62. 

penalty  for  not,  62. 
must  manage  estate,  62. 

and  render  accounts;  penalty  for  not  rendering,  63,  64. 

and  fully  settle,  64 

and  pay  debts,  defend  suits,  etc.,  64. 

and  educate  wards,  when,  64.     See  Education;  Ward. 

and  lend  money,  change  investments,  etc.,  how,  penalty,  64-67. 
has  custody  of  ward,  when,  60,  70. 
may  lease  ward's  lands  for  how  long,  etc.,  139,  140. 
liability  of,  for  leasing  too  low,  139  n. 
of  lunatic,  idiot,  imbecile  etc. 

powers  of,  to  act  for  ward  in  partition  matters,  187. 

notice  to,  as  to  road,  street,  etc.,  proceedings  affecting  ward's  land,  201. 

must  do  what,  etc.,  as  to  such  roads,  streets,  etc.,  201-204. 

must  be  appointed,  230. 


346  INDEX. 

GUARDIAN—  Continued. 

such  guardian  will  be  guardian  of  ward's  children,  also,  230. 
wife  of,  may  be  appointed,  230. 

liabilities  of  herself  and  sureties,  230. 
what  laws  are  applicable  to  such.  231. 
what  vouchers  can  not  be  received,  in  settlement,  231. 
settlement  of,  may  be  reopened,  wh>-n,  how,  etc.,  231,  232. 

notice  as  to  such  reopening,  231. 

motion  for,  231. 

how  served,  232. 
what  laws  are  applicable  to,  231. 
suits  by,  and  against,  and  survivor  of  same,  232-3. 
must  defend  for  insane  person,  unless,  2:'.:). 
must  deny  what,  in  answer  for  ward.  233. 
may  sell  ward's  real  estate,  why,  how.  etc.,  233-235. 
may  sell  dower  of  insane  widow,  how,  2'M  5. 

may  lease  or  improve  ward's  land,  when,  how,  etc.,  235-238,  247-8. 
his  duty,  powers,  etc.,  as  to  ward's  real  estate  contracts,  238-9. 

must  give  additional  bond  as  to,  when,  238. 

forms  as  to,  239-242. 
powers  of,  cease  when,  213. 
must  settle  his  accounts,  when,  243. 

duties  of,  in  proceedings  to  divest  insane  woman  of  dower,  244-5. 
duties  of,  when  insane  man's  wife  seeks  to  sell  or  mortgage  her  land, 

246. 
duties  of,  as  to  confining  ward  in  county  infirmary,  247. 
name  and  address  of,  must  be  reported  by  assessor,  247-8. 
non-resident  entitled  to  ward's  money,  etc.,  when,  267-8. 
under  civil  law. 
described.  6. 

compared  with,  under  our  statutes,  6. 
in  chivalry. 

never  existed  here,  4. 

by  nature. 

who  is,  3. 

extent  and  duration  of.  '■'>. 

has  no  control  of  ward's  propertj",  3. 

controlled  by  chancery,  in  England,  3. 

included  in  guardianship  of  person,  4. 

rights  of,  2-7. 
by  nurture. 

described,  4. 

never  existed  here,  4. 

included  in  guardianship  of  person,  4. 
in  socage. 

described,  4. 

as  to  its  existence  here,  4,  5. 
testamentary.     See  Will. 

under  common  law,  5. 

appointed  by  whom,  by  will,  in  Ohio,  26,  27  n. 

but  are  really  only  nominated  by  will,  not  appointed,  5. 

who  can  not  so  appoint,  27  n. 

have  preference  over  all  others,  27. 

duties,  powers,  etc.,  of,  27. 

as  to  bond  of  such  guardian,  27,  28,  31. 


INDEX.  347 

GUARDIANSHIP.     See  Guardian;   SVxro. 
of  minors. 

compared  with  relationship  of  parent,  2. 

takes  place,  when,  2. 
ses,  when,  2,  25,  51-2. 

origin  of  law  of,  2,  '.'>. 

brief  view   of  various  kinds  of,  2-6. 

what  terminates,  48,  50. 

accounts  to  be  rendered  at  termination  of,  50,  51,  63. 

orders,  etc  ,  concerning:,  must  be  obe}*ed  by  guardian,  67,  69. 

married  woman's  rights  as  to  acting  as,  discussed,  297-312. 
of  idiots,  lunatics,  imbeciles.     See  Guardian*,  of  Idiot,  Etc. 

ceases  when,  243. 

HABEAS  CORPUS— 

when  custody  of  child  not  changeable  by,  8-9  n. 

HEARING— 

of  exceptions  to  accounts,  161-2. 

HEIR— 

when  a  necessarj*  party  to  sale  of  ward's  land,  what  to  do,  108. 

collusive  assignment  of  dower,  will  not  injure,  112. 

made  a  party  to  suit  for  enforcing  decedent's  real  contract,  226. 

deed  in  behalf  of,  executed  when  and  how,  226,  227. 

of  lunatic  or  idiot  pauper,  may  prevent  sale  of  pauper's  land,  how,  247 

adopted,  rights  of,  and  as  to,  287. 

rights  of,  in  sales  of  entailed,  conditional,  etc.,  estate,  289-291. 

as  to  restricting  testimony  by,  or  against,  in  certain  cases,  291-2, 

HOUSE  OF  REFUGE— 

when,  how,  why,  etc.,  ward  or  minor  may  be  sent  to,  218-220. 

HUSBAND— 

dower  of,  how  released,  etc.,  103. 

is  party  to  suit  to  sell  ward's  land,  when,  51,  99,  102. 
may  do  what  as  to  insane  wife's  dower,  244-5. 
wife  of  insane,  may  sell  her  real  estate,  how,  246. 

his  interest  in,  barred  in  such  case,  246. 
of  lunatic,  etc.,  pauper  may  prevent  sale  of  land  of,  how,  247. 

IDENTITY— 
of  ward. 

how  proven,  for  purpose  of  collecting  certain  interest,  296. 

IDIOT— 

guardian  of  defined,  2. 

inquest  respecting  by  probate  court,  9. 

can  not  be  guardian,  29. 

listing  property  of,  for  taxation.  146. 

redeeming  land  of.  sold  for  taxes,  148,  149, 

as  to  partition  of  land  of,  Is". 

as  to  roads,  streets,  etc.,  affecting  land  of.  201-204. 

as  to  sale  of  liquors  in  premises  of,  guardian's  liability,  224. 

guardian  for,  must  be  appointed,  230. 

appeal  as  to  this,  280. 

powers,  duties,  etc.,  of  such  guardian,  230-248. 
can  not  sign  receipt  or  voucher,  231. 
settlement  of  estate  of,  can  be  opened  up  when,  231. 

must  be  made  when,  243. 


348  INDEX. 

IDIOT—  Continued. 

suits  by,  and  by  guardian  of,  232,  233. 

real  estate  of,  may  be  sold,  why.  how.  etc.,  233-235. 

real  estate  of,  may  be  leased  or  improved,  how,  etc.,  235-238. 

real  contracts  of,  how  completed.  238-242. 

estate  of,  how  settled,  if  insolvent,  242. 

when,  etc.,  foreign  guardian,  trustee,  etc.,  of,  may  sell  effects  of,  242. 

guardianship  over,  ceases  when,  243. 

mav  be  confined  in  county  infirmary  when,  246. 

"  sale  of  real  estate  of,  for  his  support,  in  such  case,  246-7. 
powers,  duties,  etc.,  of  trustee  of.  242,  253-269.     See  Trustee. 
how  guardian  of,  may  fix  corner  or  line  of'  land  of,  286. 
and  may  improve  real  estate  of,  247-S. 

ILLEGALITY— 

of  guardian's  appointment  does  not  vitiate  his  bond,  36. 

ILLEGITIMATE  CHILD— 

mother  is  natural  guardian  of,  3  n. 

residence  of,  how  determined,  19  n. 

appointment  of  guardian  ad  litem,  in  proceedings  as  to,  271  n^ 

appointment  ol  its  mother  as  guardian  of,  for  some  purposes,  301. 

IMBECILE — See  Guardian,  of  Idiot,  Imbecile,  etc. 
defined,  230. 
can  not  be  guardian,  20. 
guardian  for,  must  be  appointed,  when,  230. 

appeal  as  to  this,  280. 

powers,  duties,  etc..  of  such  guardian,  230-24S. 

wife  of,  may  be  such  guardian.  230. 
can  not  sign  receipt  or  voucher,  231. 
settlement  of  estate  of,  may  be  opened  up  when,  231. 
suits  by  and  against,  how  conducted,  etc.,  232-3. 

and  by  and  against  guardian  of  232-:!. 
real  estate  of,  may  be  sold,  why,  how,  etc.,  233-235. 

or  leased  or  improved,  235-238,  247—8. 
real  estate  contracts  of,  how  completed,  238-242. 
estate  of,  how  settled,  if  insolvent,  242. 

when,  etc..  foreign  guardian  of,  may  dispose  of  effects  of,  242. 
powers,  duties,  etc.,  of  trustees  of,  242.  253-269.     See  Trustee. 
corner  or  line  of  real  estate  of,  how  may  be  fixed,  286. 

IMPROVEMENTS— 

may  be  made  on  ward's  land,  how  and  why,  140,  143.  247-8. 
must  be  paid  for  by  person  claiming  to  own  land,  when,  196-199 

INCAPACITY.     See  Infants;  Idiots;  Lunatics;  Drunkards. 
to  manage  affairs,  how  imposed,  2. 

INCOME— 

only,  of  ward's  estate,  should  be  used,  unless,  79,  80. 

INCOMPETENCY— 

guardian  may  be  removed  for,  53. 

INCUMBRANCE.     See  Mortgage;  Lien. 

drunkard  can  not  put,  on  his  real  estate,  when,  251. 


INDEX.  349 

INDENTURE  - 

of  binding  out  ward  to  apprenticeship,  208,  209,  211. 
must  be  executed  by  whom,  20'J. 
must  state  minor's  age,  209. 
must  contain  what  covenant,  209. 
must  be  recorded,  etc.,  20'J. 

INDUSTRIAL  HOME  OR  SCHOOL— 

as  to  committing  girl  to,  etc.,  207e,  216-7. 

INFANTS.     See  Minors;  Ward;  Guardian. 
•     who  are,  in  evis  of  Jaw.  1 

non-resident  land  owner,  guardian  for,  17. 

INFIRMARY— 

ward,  lunatic,  or  idiot  may  be  sent  to,  when,  207d,  246-7. 

INFLUENCE.  UNDUE— 

effect  of,  as  to  guardian's  dealings  with  ward,  163  n. 

INFORMALITY— 

of  bond,  or  guardian's  appointment,  does  not  invalidate  bond,  36. 

INFORMATION— 

how  conveyed  to  probate  court,  sometimes,  55. 

INJURY— 

guardian  liable  for,  to  ward's  estate,  when,  224. 

IN  LOCO  PARENTIS— 

who  is,  to  some  extent,  as  to  ward  or  minor,  2,  84,  89,  90  n.,  217. 

INSANE  PERSON.     See  Lunatic. 
guardian   of,  defined,  2. 
inquest  respecting,  in  probate  court,  9. 
can  not  be  guardian,  2'.'. 

guardian  of  insane  person  may  act  for  ward,  103,  111. 
may  bring  suit  against  guardian,  when,  180. 
as  to  partition  of  land  of,  187.  188-195. 
as  to  roads,  streets,  etc.,  affecting  hunts  of,  201-4. 
as  to  sale  of  liquors  on  premises  of;   guardian's  liability,  224. 
can  not  sign  receipt  or  voucher,  231. 
settlement  of  estate  of,  can  be  opened  up,  when,  231. 
suits  by,  and  by  guardian  of,  and  survivor  of  same,  232,  233. 
must  be  made  party  to  suit,  how,  if  necessary,  232  n. 
real  contracts  of,  how  completed.  238-242. 
defense  of,  made  how,  233. 
real  estate  of,  may  be  sold,  how,  why,  etc.,  Ill,  233-235,  247. 

or  leased,  or  improved,  how,  etc.,  235-238,  247-8. 
how  estate  of  settled,  if  insolvent,  242. 
when,  etc.,  foreign  guardian  may  dispose  of  effects  of,  242. 
how  land  may  be  divested  of  dower  of,  244-5. 

how  proceeds  of  dower  invested  for  support  of,  235. 
appeal,  from  appointment  of  guardian  or  trustee  for,  280. 
how  guardian  of  may  fix  boundary  of  real  estate  of,  286. 
as  to  listing  property  of,  for  taxation.  146. 
redeeming  property  of,  sold  for  taxes,  148.  149 
guardian  for,  must  be  appointed,  when,  230. 

wife  of,  may  be  such  guardian,  230,  311. 


350  INDEX. 

INSANE  PERSON—  Continued. 

may  be  confined  in  county  infirmary,  when,  246-7. 
as  to  sale  of  real  estate  of,  in  such  case,  246. 
powers,  duties,  etc.,  of  trustee  of,  242,  253-2C9.     See  Trustee. 

INSANITY— 

of  party  to  action,  how  determined,  2:)?,,  244. 

INSOLVENCY— 

how  insolvent  estate  of  idiot,  lunatic,  etc.,  settled,  242. 

INSTRUMENT  FOR  PAYMENT  OP  MONEY— 

how  surety  may  be  released  from,  etc.,  288-9. 
guardian's  duty  as  to,  in  such  cases,  289. 

INSURANCE— 

charged  in  guardian's  account,  how,  153. 

INTEMPERANCE.     See  Druxkexnkss. 

INTEMPERATE  PERSON.     See  Drunkard. 

INTEREST— 

when  guardian  chargeable  with,  67,  66-67  n.,  68  n.,  79,  81,  84,  loo. 

deferred  payments  on  ward's  land  sold,  must  bear  what,  120,  121. 

on  taxes  not  paid,  145. 

lien  on  property  for,  148-9. 

how  accounted  for,  153. 

on  ward's  registered  government  bonds,  how  collected,  292-5. 

INTERESTS— 

of  minor,  must    always    be    considered   and    protected,  13,   14,  23,  24, 

25,  235. 
of  person,  if  adverse  to  minor's,  disqualifies  for  guardianship,  25  n. 

INTERESTED  PERSON— 

can  not  be  guardian,  when,  24-25  n.,  28. 

INTOXICATION— INTOXICATING  LIQUORS— 

guardian's,  etc.,  rights  as  to  damages  caused  by,  221. 
fixed  habits  of,  by  guardian,  ground  for  removal,  301. 

INVENTORY— 

must  be  filed  by  guardian,  when,  53,  62. 

failure  to  file,  is  cause  for  removal  of  guardian,  47,  53,  62. 

must  be  verified  on  oath,  62. 

form  of,  47. 

INVESTMENT— 

of  ward's  estate  may  be  changed,  when,  etc.,  95. 

by  guardian,  of  ward's  money,  64,  65,  66,  68,  83  n.,  153,  289-291. 

by  trustee,  of  beneficiary's  money,  269,  289-291. 

ISSUES— 

dower  assigned  in  rents,  issues  and  profits,  when,  11/. 

JOURNAL— 

must  be  kept  by  probate  court,  and  how,  10. 

JOURNAL  ENTRIES     See  Forms. 

of  appoiutmeut  should  show  what,  and  why,  45. 


INDKX.  351 

JUDGMENT 

if  guardian  or  trustee  acts  according  to  best  of  his,  74,  75,  G0-C>1  n. 

must  use  for  benefit  of  ward,  not  of  Belf,  77. 

affidavits  of  men  of,  for  private  sale  of  ward's  land,  123. 

JUDGMENTS— 

must  be  docketed,  10,  53. 

to  enforce  faithful  performance  of  duty,  53,  178. 

for  costs,  form  of, 

guardian  must  obey  all,  touching  guardianship,  67,  69. 

what,  must  be  set  out  in  petition  for  sal''  id'  ward  a  land,  99. 

ward  not  bound  by,  if  not  a  party  to  the  suit.  W  n. 

can  not  be  collaterally  impeached,  unless,  21,  Id:;  d. 

rule  as  to  taxes,  to  have  same   force  as,  1  18. 

when  final  settlement  has  same  effect  as,  165 

effect  of  generally,  against  guardian,  etc.,  179,  180,  181. 

sureties   maybe   mad"   parties  to,  when,  181. 

in  case  of  apprenticed  minor,  210. 

releasing  bind  from  insane  woman's  right  of  dower,  245. 

against  infant  will  be  reversed,  in  certain  ease,  27'J  n. 

as  to  revivor,  etc.,  of,  287-8. 

JURISDICTION— 
oj  probate  court  or  judge,  5.  7,  8—1 1. 

can  not  lie  interfered  with  by  habeas  corpus,  8-11  n. 

exclusive,  8-10,  265. 

concurrent,  10. 

to  administer  oaths,  etc.,  10. 

once  vested,  excludes  that  of  all  others,  10,  17  n. 

how  determined,  1 7. 
of  appointing  guardian  is  open  to  inquiry,  17  n.,  21. 
minor  must  be  resident  of  county,  or  court  can  not  appoint  guardian, 

17,21,22. 
if  court  has  no,  its  action  absolutely  void,  21. 
some  discussion  of,  8  n. 

is  concurrent  in  guardian's  sale  of  land,  97. 
once  acquired,  is  exclusive,  'J~ .  265. 
certain  sales  void,  for  want  of,  '.'7  n.,  103  n.,  131  n. 
to  appoint  guardian  of  drunkard,  is  constitutional,  7-8  n.,  250-1  n. 
as  to  trustees  of  non-resident  idiot,  minor,  etc.,  264. 

JURY— 

duties  of,  etc.,  in  case  of  contested  ownership  of  land,  148. 

duties,  etc.,  as  to  apprenticed  minor,  210. 

to  inquire  into  insanity  of  owner  of  dower,  244. 

not  allowed,  in  proceedings  to  appoint  guardian  for  drunkard,  250. 

JUSTICE  OF  THE  PEACE.     See  Magistrate. 
may  administer  oaths  required,  40. 
duties  of,  as  to  wards,  70-72,  207/,  295, 
duties  of,  as  to  apprenticed  minors,  210. 

duties  of.  as  to  committing  ward  or  minor  to  house  of  refuge,  218-220. 
can  not  try  case,  if  related  to  either  party  as  guardian  or  ward,  287. 
as  to  survival  of  suit  against,  287-8. 

LABOR  AND  SERVICES— 
of  ward. 

guardian's  duty,  etc.,  as  to,  84,  85. 


352  INDEX. 

LAND.     See  Real  Estate;  Property;  Guardian;  Sale;  Lease. 

LAND  SCRIP— LAND  WARRANT— 

conversion  of,  by  guardian,  62  n.,  78  n.,  95  n. 
sale  of,  by  guardian,  invalid,  when,  95  n. 

LAPSE  OF  TIME— 

makes  title  good  when,  149. 

LAWS— 

as  to  guardians  of  minors,  govern  guardians  of  idiots,  insane  persons, 
etc.',  231. 

and  trustees,  in  some  respects,  266-7,  269. 
as  to  guardians  of  idiots,  etc.,  govern  guardians  of  drunkards,  249. 
us  to  executors,  etc.,  govern  accounts  of  trustees,  258-4,  257-9. 
as  10  own  child,  govern  adopted  child,  287. 
as  to  guardian  of  person  and  estate,  govern  guardian  of  estate,  69. 

LEASE  OF  WARD'S  REAL  ESTATE— 

guardian  may  make,  for  how  long,  etc.,  139,  140-1436,  235,  295. 

guardian's  responsibility  for  leasing  too  low,  139  n. 

what  application  for  leave  guardian  must  make,  140,  143a,  1436,  236. 

who  may  join  in  application,  140. 

what  such  application  must  show,  140,  235,  236. 

rules  as  to  parties,  and  notice  in  such  matter,  140. 

as  to  dower  in  such  case,  140. 

form  of  application  or  petition  for  leave  to  make,  141,  142,  236. 

verification  of,  142,  237. 

proceeding  on  hearing  of,  142,  237. 

freeholders  must  be  appointed,  what  for;  report  of,  142,  143a,  237. 

how  freeholders  appointed,  forms  for,  etc.,  142,  143a,  237. 
when  court  will  authorize  such  lease,  142,  143,  238. 
when  such  lease  will  determine  at  ward's  majority  or  death,  143,  235. 

lessee's  rights  in  such  case,  143,  235. 

renewal  of  lease,  in  such  oase,  by  whom,  143,  235. 
guardian's  liability  if  rented  for  sale  of  liquors,  etc.,  221-5,  295. 

lease  void,  in  such  case,  224-5. 
trustee  of  non-resident  mii}or,  idiot,  etc.,  may  lease,  264-267. 
of  entailed,  conditional,  etc.,  estate,  291. 

LEGAL  SETTLEMENT.     See  Settlement;  Residence. 

LEGAL  REPRESENTATIVE.     See  Administrator;  Executor. 
entitled  to  money  and  other  effects  of  ward,  when,  267,  268,  165. 

LEGATEE—  _ 

as  to  restricting  evidence  by,  or  against,  291-2. 

LESSOR.     See  Lease. 

position  of,  who  lets  premises  for  sale  of  intoxicating  liquors,  224. 

LESSEE— 

rights  of,  when  ward  arrives  of  age,  143. 

rights,  liabilities,  etc.,  of,  as  to  sale  of  intoxicating  liquors,  221-225, 
"224. 

LETTER— 

certain  communication  to  probate  court  may  be  by,  55. 


INDEX.  353 

LETTERS  OF  GUARDIANSHIP.      See  Guardian,  Appointment  of. 
force  and  effect  of,  17  n.,  46  n. 
how  issued,  etc.,  when  more  wards  than  one,  32. 

fees  in  such  cases,  32. 
issued  before  bond  given,  are  void,  45  n. 
if  improperly  issued,  what  to  "do,  in  certain  case,  243. 
certified  copy  of,  must  be  sent  to  Washington,   to  enable  guardian  to 
collect  interest  on  registered  U.  S.  bonds,  2!):!. 

LIABILITY.     See  Negligence ;  Loss;  Damage;  Guardian. 
of  sureties.    See  Sureties;  Bond. 
of  guardian.     See  GUARDIAN. 

of  sheriff  and  bis  sureties,  in  partition  proceedings,  193. 
of  guardian,  parent,  etc,  as  to  apprenticed  ward,  211. 
of  guardian,  etc,  as  to  traffic  in  intoxicating  liquors,  221-225. 
under  gaming  laws,  295. 

LICENSE— 

must  be  obtained,  in  case  of  ward's  marriage,  71. 
damages  for  wrongful  issuing  of,  71  n. 

LIENS— 

on  ward's  real  estate,  paid  how,  if  necessary  95,  148. 

must  be  described  in  petition  for  sale  of  ward's  land,  98,  99. 

must  be  paid  out  of  proceeds  of  sale,  132. 

may  sometimes  be  paid  by  long  lease  140. 

as  to  adjusting,  in  proceedings  to  lease  ward's  real  estate,  140. 

tenant  has,  for  improvements  on  ward's  leased  land,  143. 

guardian  has,  for  taxes  paid  on  ward's  property,  140. 

tax  title  little  better  than,  148-9. 

fines,  etc.,  for  sale  of  liquors  on  ward's  premises,  etc.,  are,  on  premises, 

224. 
bj'  drunkard  on  his  land,  invalid  when,  251 

LIBEL— 

as  to  suits  for,  287-8. 

LINE- 

of  ward's  real  estate  fixed  by  guardian,  how,  286. 

LIQUORS.     See  Intoxicating  Liquors. 

LITIGATION.     See  Suits. 

costs  of,  who  must  pay.     See  Costs. 

LISTING— 

ward's  property  for  taxation,  145-147. 

LOSS.     See  Negligence;  Damages;    Liability. 

as  to  guardian's  and  trustees   liability  for  76,  74,  75,  60-61  n.,  66  n., 
67  n.;  74-76  n.,  78. 
LOTS,  TOWN.     See  Real  Estate. 

ward's  land  may  be  divided  into,  for  sale,  when,  98. 

as  to  description  of  in  petition,  98  n. 

guardian  must  pay  taxes  on  ward's,  144,  145. 

sold  for  taxes,  may  be  redeemed,  when,  148,  149. 

land  divided  into  what,  in  partition  matters,  190. 

corner  or  line  of,  may  be  fixed,  how,  286. 

LOTTERY— 

on  ward's  premises,  295-6. 


354  INDEX. 

LUNATIC.     See  Insane  Person. 
guardian  of,  defined,  etc.,  2. 
inquest  respecting,  in  probate  court,  9. 
who  must  list  property  of,  for  taxation,  146. 
redeeming  property  of,  sold  for  taxes,  148,  149. 
guardian  for,  must  be  appointed,  when,  230. 

wife  of,  may  be  such  guardian,  230. 
powers,  duties,  etc.,  of  such  guardian,  230,  311. 
powers,  duties,  etc.,  of  trustee  of,  242,  253-269.     See  Trustee. 
real  estate  contracts  of,  how  completed,  etc.,  238-242. 
how  wife  of,  may  convey  her  lands,  246. 
may  be  confined  in  county  infirmary,  when,  246. 

sale  of  real  estate  of,  for  his  support  in  such  case,  246. 

guardian,  parent,  etc.,  of,  may  prevent  sale  how,  247. 
real  estate  of,  may  he  improved,  247-8. 

MAGISTRATE.     See  Justice  of  the  Peace;  Mayor;   Police  Judge. 
may  evict  tenant  of  ward's  land  sold,  138. 
as  to  appeals  from  court  of,  284. 
as  to  guardians  ad  litem  in  suits  before,  278-9. 

MAINTENANCE.     See  Ojardiax;  Father;   Mother;  Ward. 

of  minor.  ' 

guardian  of,  should  furnish,  when,  69,  87,  89,  90. 
father  of,  should  furnish,  when,  69,  87,  90  n. 
mother  of,  should  furnish,  when,  69,  88. 
stepfather  of,  should  furnish,  when,  88. 
ward  must  contribute  toward,  by  labor,  when,  84. 
as  to  allowance  of  fixed  sum  for,  85. 
who  must  furnish,  and  how  decided,  87,  88. 
style  of,  how  determined,  87,  90,  n. 
how  order  for  granted,  87,  89,  162  n. 

MAJORITY— 

age  of,  when  attained.  1. 
wardship  ceases  at,  2,  3. 

MALE  PERSON— 

when  of  full  age,  1,  2. 

if  ward,  effect  of  marriage  on*guardianship,  50,  51. 

commitment  of,  to  reform  school,  etc.,  214-220. 

MALICIOUS  PROSECUTION— 

as  to  actions  for,  287-8. 

MANDAMUS— 

must  be  resorted  to,  when,  162  n. 

MANUFACTURER— 

can  not  employ  child  who  has  not  attended  school,  when,  206. 

MARRIAGE— 

ends  guardianship,  when,  50,  301-307,  308.  311. 

guardian's  consent  to,  necessary,  when,  70. 

is  void,  when,  70,  71   ft. 

when  court  will  declare  it  a  nullity,  70  n.,  71  n. 

promises  of,  constitute,  when,  and  when  not,  70-71  n. 

between  what  degrees  of  kinship  forbidden  by  law.  70. 

as  to,  of  ward,  70,  71. 


INDEX.  355 

as  to  marriage  ban?,  etc.,  71. 

effect  of    ward's,  50. 

makes  guardian's  final  settlement  necessary,  when,  50,  312. 

MARRIED  WOMAN- 
IS  party  in  suit  to  sell  real  estate,  51,  99,  102. 
as  to  dower  of,  103,  111. 
can  be  guardian    when,  etc.,  30,  50.  297-312. 

exceptions  to  this,  290.  301,  307-310,  311. 
her  legal  status  discussed,  297-8. 
if   unmarried    female  guardian   becomes,  what  must  be  done,  50,  299, 

310. 
formerly  managed  her  own  property  to  what  extent,  298. 

MASTER— MISTRESS— 

duties,  rights,  etc.,  of,  as  to  child  bound  out  to,  209-211. 
character  of,  213. 

MAYOR— 

duties,  etc.,  of,  as  to  marrying  ward,  71. 

may    commit    ward    to    house   of   refuge,  children's  home,    etc.,  207/, 
218. 

MILITIA  FINES— 

guardian  must  pay,  when,  287. 

as  to,  generally,  as  affecting  guardian,  287. 

MINISTER  — 

duties  of,  as  to  ward's  marriage,  71,  72. 

MINOR.    See  Ward. 

who  is  a,  1. 

is  a  ward,  when,  2. 

parent  of,  has  no  control  over  property  of,  2. 

how  residence  of,  determined,  17-23. 

rights  of  non-resident.  17. 

can  not  change  his  residence,  18. 

best  interests  of,  always  consulted,  6  n.,  23,  24,  25,  53,  62. 

also,  state  of  its  affections,  attachments,  etc!,  24  n.     See,  also,  25. 
rights  of,  to  choose  guardian,  25,  26,  249. 
if  he  fails  to  select,  court  may  select,  25. 

can  not  choose  separate  guardian  of  person  and  estate,  unless,  25. 
should  be  notified  to  come  and  select  guardian,  26. 
when  guardian  of  parent  of,  is  guardian  of,  also,  249. 
can  not  be  guardian,  29. 

when  parent  of,  should  be  appointed  guardian,  24  n.,  29. 
dangers  to,  if  bond  of  guardian  is  not  required  in  court,  37. 
effect  of  removal  of,  from  this  state,  52. 
when  parents  entitled  to  custody  and  control  of,  61. 
rights  of,  as  to  education,  61. 
guardian  must  act  for,  generally,  63  n. 
can  not  marry  without  guardian's  or  parent's  consent,  when,  70. 

of  what  degree  of  kindred  may  marry  with  such  consent,  70. 

what  promises,  etc.,  of,  will  constitute  marriage,  70-71  n. 

guardian's,  etc.,  consent  must  be  witnessed  and  certified,  how,  71. 
rights  of  non-resident.     See  Guardian,  Foreign. 
how  served  with  notice  or  process,  101,  105. 


356  INDEX. 

MINOR—  Continued. 

defense  of,  must  be  by  guardian  ad  litem,  110,  111,  271. 

regular  guardian  may  act  as,  when,  64  n. 

right  of,  to  a  day  in  court,  110. 

can  not  be  prejudiced  by  collusive  assignment  of  dower,  112. 

as  to  paying  taxes  on  property  of,  etc.,  144-148. 

such  property,  redeemable  when,  if  sold  for  taxes,  148,  149. 
may  bring  suit  on  guardian's  bond,  when,  180. 
how  affected  by  partition  proceedings,  187-194. 
how  affected  as  to  roads,  streets,  etc.,  201-204. 
must  attend  school,  duty  of  guardian  as  to,  205-207/,  20'). 
may  be  bound  out  to  apprenticeship  or  service,  when,  how,  etc.,  208- 
213,  215,  216,  218,  220. 

rights  of  minor  so  bound,  209. 

must  get  schooling,  bible,  clothes,  etc,  when,  209. 
must  be  sent  to  reform  school,  how,  why,  how  long,  etc.,  214. 

and  to  industrial  home,  why,  how  long,  etc.,  215,  216. 

and  to  industrial  school,  why,  how  long,  etc.,  216,  218. 

and  to  children's  home,  why,  how  long,  etc.,  216-218. 

and  to  house  of  refuge,  why,  how  long,  etc.,  218-220. 

how  trial  held,  in  such  case,  219. 

how  expenses  of  maintenance,  etc.,  paid,  219. 
rights  of,  as  to  damages,  etc.,  caused  by  intoxicating  liquors,  221-5. 
trustee  for  non-resident,  may  be  .appointed,  how,  etc.,  264. 

duties  of,  etc.,  264-269. 
non-resident,  rights  of,  285-286. 

how  affected  by  acts  of  guardian  ad  litem,  271,  272-9. 
can  not  act  as  guardian,  ad  litem,  272  n. 

rights  of,  etc.,  as  to  sale  of  entailed,  conditional,  etc.,  estates,  289-291. 
as  to  registered -government  bonds  of,  292-5. 

MINORITY— 

lasts  how  long,  1,  2. 

MISCONDUCT— 

when  guardian  forfeits  bond  by,  who  may  sue,  178.     See  Suit. 

MISTAKE— 

final  settlement  will  be  opened  on  account  of,  165-6. 

MISTRESS.     See  Master. 

MONEY.     See  Property;  Estate. 

how  foreign  guardian  can  get,  of  non-resident  ward,  72. 

guardian's  liability  for,  deposited  in  bank.  74,  75,  60  n. 

must  see  that  it  is  paid  to  right  person,  76-7. 

right  of  ward  to  his,  in  cases  of  wrongful  sale  of  property,  80,  81. 

guardian  must  invest  ward's,  how,  64,  68,  83  n.,  153. 

guardian  can  not  invest  ward's,  on  personal  security,  66  n. 

guardian  must  use  his  own,  to  pay  ward's  taxes,  when,  146. 

refunder  of,  in  such  cases,  146. 
guardian  must  pay  interest  on  ward's,  when,  67,  79,  81,  84,  153. 
guardian  must  be  allowed  interest  on  his,  when,  153-4. 
final  account  must  show  payment  of,  to  ward,  158. 
paj^ment  of,  in  partition  proceedings,  193. 
collected  as  fine,  paid  to  whom,  207. 
secured  to  child  bound  out,  how,  etc.,  209. 
widow  may  receive  in,  in  Jieu  of  dower,  111,  141,  234. 


index.  357 

MONEY—  Continued. 

bond  for,  when  guardian  receives  by  reason  of  real  contract,  238. 
management,  etc.,  of,  belonging  to  non-resident  minor,  idiot,  etc.   264 
trust***  must  loan,  when,  269. 

as  to,  arising  from  sale  of  entailed,  conditional,  etc.,  estate,  289-291. 
MORTGAGE- 

raay  be  given  in  lieu  of  freehold  sureties,  31. 

requisites  of,  31. 

must  be  recorded,  where,  31. 

and  be  filed  with  court,  31,  39. 
affidavits  as  to,  31. 
form  of,  as  security  to  bond,  37. 

of  acknowledgment  to,  38. 
should  be  filed  with  bond,  39. 

how  to  proceed,  when  it  is  proposed  to  give  mortgage,  39. 
must  be  taken  when  ward's  money  is  loaned  on  land,'  65,  66. 
are  considered  proper  investment,  when,  65-66  n.,  67  n. 
ward's  land  may  be  sold  to  satisfy,  when,  95. 

must  be  described  in  petition  for  sale  of  ward's  land,  99. 
remains  in  full  force,  if  mortgagee  is  not  a  party  to  suit  to  sell  land,  99  a 
deferred  payments,  in  sale  of  ward's  land,  secured  by,  120,  131. 
given  to  whom,  134. 

form  of,  to  secure  balance  of  purchase  money,  134-5. 
note  and,  should  correspond,  134. 
must  be  accounted  for,  how,  152,  153-4. 
as  to,  to  secure  insane  woman's  proceeds  of  dower,  245. 
when  insane  man's  wife  may  mortgage  her  real  estate,  246. 
by  drunkard  invalid,  when,  251. 

MOTION— 

to  compel  guardian  to  render  an  account,  63. 

to  open  guardian's  settlement,  231. 
notice  of  same,  231. 

to  compel  trustee  to  file  account,  259. 

for  payment  of  ward's  money  to  foreign  guardian,  etc.,  268. 
MOTHER- 
IS  guardian  by  nature,  when,  3.     See  Guardian. 

rights,  duties,  etc.,  of,  as  such  guardian, 3,  293.     See  Guardian. 

when  residence  of  is  residence  of  ward,  8-10  n.,  18,  21-23. 

custody  of  child  may  be  taken  from,  why,  23,  24  n. 

should  be  appointed  guardian  of  her  child,  when,  24  n. 
can  not  be,  when,  24  n.,  25  n. 

may  appoint  guardian  by  will,  when,  26. 

when  entitled  to  custody  and  control  of  child,  9  n.,  61,  70. 

consent  of,  to  get  married  necessary,  when,  70. 

fixed  sum  for  maintenance  of  ward  often. allowed  to,  85-6. 

generally  entitled  to  maintenance  of  ward  out  of  its  estate,  87. 
but  must  maintain  and  educate  ward,  when,  69,  88  n. 

must  be  served  with   notice  for  minor,  when,  104. 

must  list  child's  property  for  taxation,  when,  146. 

must  send  child  to  school,  when,  205-206. 
penalty  for  neglecting  to,  206,  207. 

duty,  etc.,  of,  as  to  binding  out  child,  209. 

can  not  collect  interest  on  her  child's  government  bonds,  293. 
MUNICIPAL  CORPORATIONS— 

as  to  streets  in,  affecting  ward's  property,  201---.G4,  278. 
_4 


358  INDEX. 

NAMES— 

of  certain  guardians  must  be  reported  by  assessor,  248. 

NEGLECT—  . 

parent  and  guardian  must  protect  bound  minor  from,  209. 

NEGLIGENCE—  . 

guardian  liable  for,  when,  60-61  n.,  66  n.,  158  n.,  178,  289. 
who  may  sue  for  guardians,  178. 

NEWSPAPER.     See  Notice. 

notice  must  be  published  in,  how  long,  etc.,  107,  108,  125,  161,  181,  201, 

256. 
copies  of,  containing  notice,  must  be  mailed  to  defendants,  107. 
affidavits' as  to  publication  in,  109,  129. 
if  none  published  in  the  county,  what  to  do,  129. 

NON-RESIDENT.     See  Residence;  Ward;  Trustee. 
minor  land-owner,  rights  of,  17,  285. 
rules  for  determining  who  is,  19. 
can  not  be  guardian,  23,  28.  29,  51. 

nor  sureties  on  his  bond,  30. 
may  be  served  with  notice  by  publication,  181,  107-110,  201. 

NON-RESIDENT  GUARDIAN,  TRUSTEE,  ETC.      See  Foreign  Guar- 
dian, Trustee,  Etc. 

NOTARY  PUBLIC- 

may  administer  oaths  required  in  probate  matters,  10,  4_. 

NOTE—  ,  „     ,       ,  -,  •       ,    ion 

for  balance  purchase  money  for  ward  s  land,  how  received,  liU. 

to  whom  given,  134. 

how  accounted  for  by  guardian,  152. 

his  liability  on,  in  certain  case,  67,  152  n. 
sureties  on,  may  require  creditor  to  do  what,  288. 
sureties  on,  how  released,  etc.,  288-9. 

guardian's  duty,  etc.,  as  to  this,  289. 

NOTICE—  . 

of  proposed  removal  of  guardian,  must  be  given  him,  53,  54. 

forms  of,  55,  56. 
of  proposed  selection  of  guardian  by  ward,  58. 
of  petition  to  sell  ward's  land,  must  be  given,  how,  102,  104,  10o, 
how  served,  102  n.,  102-5,  106. 

if  record  shows  that   "  due  notice      was  served,  effect  ot,  103  n. 
want  of,  makes  sale  void,  103  n. 

but,  merely  defective  notice  will  not,  103  n. 
how  must  be  served  upon  minors.  104,  105. 
how  served,  generally,  in  probate  court,  when  law  is  silent,  105. 
form  of  journal  entry  as  to,  105. 
form  of  notice,  106,  of  return  to,  106. 
form  of  affidavit  as  to  service  of,  107. 
service  of,  by  publication,  107-110,  181,  184. 
affidavit  to  authorize  service  of,  by  publication,  107,  108. 
of  sale  of  ward's  land,  125. 
proof  of  publication  of,  as  td  sale  of  ward  s  lands,  128,  1Z9. 


index.  359 

NOTICE—  Continued, 

copy  of  notice  must  be  attached  to  the  order  of  sale,  and  returned  with 

it,  12*,  184. 
in  the  matter  of  leasing  ward's  real  estate  for  long  term,  140. 
of  filing  ol  guardian's  accounts,  must  he  given  how,  etc.,  161-2,  174. 
of  filing  exceptions  to  bond,  or  sun  tics,  must  be  given  to  whom,  169. 
170. 

form  of,  170. 
when  served,  by  whom,  and  how  service  proved,  170-1. 
of  surety's  application  for  release  from  bond:  service  and  proof  of,  etc., 
174,  17.-). 

if  not  served,  release  void,  175  n. 
to  occupying  claimant  of  real  estate.  196,  197. 

must  be  given  to  guardian,  and  to  others,  concerning  proceedings  as  to 
what  roads,  etc.,  201,  202. 

must  be  given  to  drunkard,  of  proceedings  to  appoint  guardian  for,  249. 
concerning  sale  of  intoxicating  liquors,  affects  guardian,  bow.  221    223. 

such  notice  given  when  and  how,  223. 

effect  of,  22::.  221. 
service  of,  in  suits  for  enforcing  decedent's   real   contract,  how   made 

226. 
of  motion  to  reopen  settlement  of  guardian  of  lunatic,  etc.,  231. 

how   served,  232. 

how  service  of  proved,  232. 
as  to  appointment  of  guardian  of  idiot,  drunkard,  etc.,  230,  249 

form  of,  250. 

how  served.  250. 

how  service  of  proved,  250. 
of  filing  and  hearing  of  trustee's  accounts  must  be  given,  256. 

costs  ot   notice,  how  paid.  257. 

form  of,  257. 

of  petition  to  pay  ward's  money  to  foreign  guardian,  administrator,  etc., 

268. 
to  guardian  ad  litem  of  his  appointment,  how  given,  etc.,  272. 
can  not  be  waived  by  guardian  ad  Ulna.  274. 
surety  may  give  to  creditor,  to  sue  principal  debtor,  288. 

such  notice  to  be  given  how,  288.  289  n. 

effect  of,  etc.,  288,  289. 

NUISANCE— 

as  to  suit  for,  287-8. 

OATH.     See  Affidavit  ;  Guardiax,  Oath  of. 
who  may  administer,  10,  102. 
applicant  for  appointment  must  make  what,  31. 
examination  of  surety  under,  33,  34. 

form  of  oath  in  such  case,  33. 
form  of  oath  at  time  of  appointment,  45,  46. 
may  be  indorsed  on  bond,  45. 

or  annexed  to  bond  ;   but  need  not  be,  45. 
to  inventory,  must  be  made,  62. 
to  accounts,  must  be  made,  63,  159,  157,  161,  162. 
to  verify  pleadings,  102,  112. 

to  verify  service  of  notice,  etc.,  107,  108,  109,  110. 
of  appraisers,  1 16. 

must  be  indorsed  on  certificate  of  appointment,  116. 
of  freeholders  to  investigate  as  to  long  lease  of  ward's  land   142. 


3bU  INDEX. 

OATH—Cbntinti'dL 

commissioners  in  partition  must  make,  190. 

committe  to  inquire  into  sanity  of  dower  owner  must  make,  244. 

to  trustee's  accounts,  254. 

OCCUPYING  CLAIMANT.     See  Tenant;  Adverse  Claimant. 
ward  may  be,  or  may  be  adverse  claimant,  1%. 
must  be  fully  paid  for  what,  if  evicted,  196. 
proceeding  to  oust,  from  possession,  1 96— 11»9. 
how  damages,  value  of  improvements,  etc.,  determined,  198. 
rights  and  obligations  of,  generally,  197-200. 
may  have  an  action  to  quiet  title,  199-200. 

ORDERS— 

of  court. 

must  be  docketed  in  probate  court,  10. 

and  recorded,  11. 
for  enforcing  guardian's  duty,  53. 

guardian  must  obey  all,  touching  guardianship,  67,  69. 
should  be  obtained,  before  infringing  on  ward's  capital,  79,  80. 

ORDER— 

to  appraisers,  115,  116. 

of  sale  of  ward's  land,  120. 

its  requirements,  120-121. 

committing  boy  to  reform  school,  214. 

committing  girl  to  industrial  home,  215. 

as  to  sale  of  liquors,  225. 

PAPER— 

filing  each,  must  be  docketed,  10. 

PARCELS— 

when  land  may  be  sold  in,  234. 

PARTIES  TO  ACTIONS.     See  Sale;  Lease;  Suit. 

who  are,  in  proceedings  to,  99,  100,  140,  141,  234,  236,  244,  245,  246. 

effect  of  guardian's  being  plaintiff  against  ward,  104. 

how   served   with  notice,  53,  54,  58,  103-105,  106,  107-110,  140.     See 

Notice. 
in  proceedings  to  reclaim  land  sold  for  taxes,  149. 
in  proceedings  as  to  unexecuted  real  contracts,  226-8. 
when  insane  person,  idiot,  etc.,  is,  232,  233. 
how  insanity  of  determined,  233. 
guardian  ad  litem  is  not  a,  271. 
effect  of  death  of  either  of  the,  287-8. 
can  not  testify,  when,  291-2. 

PARTNERS— 

may  not  testify,  when,  292. 

PARENT.     See  Father;  Mother. 
compared   to  guardian,  2,  84. 
has  no  control  over  child's  property,  2. 
guardianship  during  life  of,  2. 
may  appoint  guardian  by  will,  5. 
divorced,  as  to  guardian  for  children  of,  8  n. 
residence  of  is  residence  of  ward,  8-10  n.,  17,  18,  22,  23. 


[NDEX. 


361 


PARENT—  Continued. 

deprived  of  custody  of  child,  when,  6  n.,  23   24  n     61   69   70 

W?an,S24f„deCeaSed'  ^"^   t0  Weight  with  C0Urt  ^pointing  guard- 
consent  of,  to  marriage  necessary,  when   70. 
must  support  minor  ward,  when,  87,  88.  ' 
wishes  of,  as  to  ward,  consulted  when,  90  n. 
as  to  service  of  legal  notice  upon,  for'mino'r  child    103-105 
•bound  to  scrupulous  good  faith  to  child,  when   163  n 

court  will  do  what,  in  such  case    163  n 
rights,  duties  etc.,  of,  as  to  child's  attending  public  school,  205-207* 
may  send  child  to  reform  school,  when,  214.  o  ,     uo  _u,t. 

dutms,  etc    of,  as  to  sending  girl  to  industrial  home  215 
end  may  be  sent  to  children's  home,  etc.,  if  not  provided  for  by  216 
child  may  be  sent  to  house  of  refuge,  why  218-220 
may  apply  for  release  of  child  fronrsuch  place  how  etc    ?'?0 
rights,  duties,  etc.,  of,  as  to  damages  caused  by  intoxicating  liquors  221 
same,  as  to  adopted  child,  287.  «i""i»,  ***■. 

PARTITION— 

of  deceased  ward's  land,  88. 

of  ward's  lands  sold  by  guardian,  99. 

laws  governing,  given  why,  186. 

guardian  may  fully  act  for  ward,  in,  187. 

notes  of  decisions  concerning,  187-191. 

reversioners  and  remaindermen  not  entitled  to   188  n 

who  maybe  compelled  to  make  or  suffer   188* 

what  property  is  subject  to,  189. 

who  may  file  petition  for;  what  to  set  forth   189 

the  order  of,  189. 

commissioners  to  make,  duties  of,  189,  190,  194. 

writ  of,  to  whom  directed,  etc.,  189,  190. 

proceedings  for,  must  be  in  common  r^eas  court   187   189 

amicable  partition  may  be  had,  when   190 

effect  of,  190. 
land  must  be  appraised  and  sold,  if  not  capable  of  division   190 

how-to  proceed  in  such  case,  190,  191. 
terms  of  payment,  if  land  sold,  191,  192. 
land  sold  at  auction,  when,  192. 
confirmation  of  sale,  192. 
deed  for  land,  delivered  to  purchaser,  192. 
distribution  of  proceeds,  193. 
what  to  do  if  land  offered  and  not  sold,  193. 
who  will  have  no  privileges,  etc.,  over  others,  in,  195. 

PAYMENT.     See  Guardian;  Account. 

of  certain  stock,  may  be  made  to  whom,  69. 

deferred,  in  sale  of  ward's  land,  secured  how,  120. 

of  guardian's  professional  services  as  attorney,  153-154  n- 

of  guardian's  services  generally,  159-161. 

LMiardian  may  make  all,  in  partition  matters,  187 

how  made  in  partition,  191,  192. 

on  real  contracts  of  ward's  ancestor,  etc.,  226-7. 

of  laud  of  insane  person,  idiot,  etc.,  234. 

PAY  PATIE NT- 
idiot  or  lunatic  may  be,  in  county  infirmary,  246. 

PEACE  WARR A NT- 
iii  ward's  behalf,  296. 


362  INDEX. 

PENALTY.     See  Guardian,  Removal  of. 

for  not  filing  inventory,  62 

for  not  paying  taxes,  145. 

for  not  listing  property  for  taxation   14o   147. 

that  must  be  paid,  in  redeeming  land  sold  tor  taxes,  148,  149. 

for  not  sending  ward  or  child  to  school,  206,  '201c,  207/. 

for  permitting  ward's  premises  to  be  used  for  sale  of  liquors,  224. 

cruelty,  etc.,  to  ward,  296. 

PENSION— 

guardian's  duty  as  to,  61  n.,  80  n. 

PERCENTAGES.     See  Compensation. 

allowed  to  guardian,  how  computed,  160. 

PERSON— 

when  of  age,  1,  2. 

if  unsuitable  to  have  custody  of  child,  what  to  do,  6  n.,  23,  24  n. 

adversely  interested,  can  not  be  guardian,  24-25  n. 

if  suitable,  and  ward  selects,  must  be  appointed  guardian,  25. 

interested,  may  compel  rendering  of  accounts,  63. 

PERSONAL   PROPERTY   OF   WARD.      See    Property;    Investment: 
Estate;  Money. 
must  be,  or  may,  be  sold,  when,  94. 
who  must  see  to  taxes  on,  when,  etc.,  144-148. 

PERSONAL  SECURITY— 

guardian  and  trustee  can  not  lend  money  on,  66  n. 

PHYSICIANS-  .        . 

must  be  appointed  to  inquire  into  sanity  ot  dower  owner,  when,  244. 

PIKES.     See  Roads. 

duties,  rights,  etc.,  of  guardian  ar.d  ward  as  to,  202. 

PETITION.     See  Application  ;  Motion;  Pleadings. 

for  sale  of  ward's  land,  must  contain  what,  97-99,  234. 

form  of,  99-102. 

probate  court  has  concurrent  jurisdiction  on,  for  such  sale,  97. 

hearing  of,  113,  234. 
in  proceedings  to  lease  ward's  real  estate,  140,  141,  143a,  1436. 

must  contain  what,  140,  14oa,  1436. 

form  of,  141.  142. 

hearing  of,  142,  143a,  1436. 
to  compel  guardian  to  pay  money  due  on  settlement,  182-4. 
as  to  streets,  roads,  etc.,  affecting  ward's  land,  201,  203,  204. 
as  to  real  estate  contracts  of  ward's  ancestor,  etc.  226-8. 
as  to  sale  of  real  estate  of  idiot,  lunatic,  etc.,  234. 
as  to  lease  of  real  estate  of   idiot,  etc.,  236-7. 
to  release  land  from  dower  of  insane  person,  244,  245. 

must  contain   what,  244,  245. 
to  permit  insane  person's  dower  to  be  barred.  245. 
to  improve  real  estate  of  lunatic,  idiot,  etc.,  247. 
PLAINTIFF.     See  Parties  to  Action;  Suit;  Sale. 

PLAT— 

of  town  lots  to  be  sold  by  guardian,  113,  121. 


index.  ;5G3 

PLEADINGS.     See    Petition;  Answer;    Motion;    Verification;    Suit; 
Sale. 
must  show  what,  182. 
must  be  recorded,  where,  10,  ii.">. 
verification  of.     See  Verification. 

POLICE  JUDGE— 

m.'iy  send  ward  to  reform  school,  when,  214. 

POSSESSION— 

of  lands  sold  by  guardian,  how  obtained,  if  necessary,  138. 

POST  OFFICE  ADDRESS— 

of  certain  guardians  must  be  reported  by  assessor,  248. 

PRECIPE— 

for  order  of  sale,  124. 

PREMISES— 

penalties,  etc.,  for  selling  liquors  on  ward's,  224,  221-225. 

PRIVILEGED  COMMUNICATIONS— 

what  are,  etc.,  291,  292. 

PROBATE  COURT— PROBATE  JUDGE— 
generally. 

is  a  court  of  record,  7  n. 

power  of,  to  appoint  guardian  of  drunkard  is  constitutional,  7  n,  250-1  n. 

may  administer  oaths,  10,   12. 

must  keep  what  books,  affecting  guardianship,  10,  11. 

must  make  therein  what  omitted  entries,  indexes,  etc.,  11. 

how  paid  for  these,  11. 
can  not  prepare  papers,  etc.,  for  guardian,  except,  11,  12. 
probate  judge  can  not  he  guardian,  12,  28. 
if  interested  as  heir,  legatee,  etc.,  what  to  do.  12.    . 
questions  arising  in,  how  determined,  13. 
depositions  can  be  used  in.  13 
fees  of  witnesses,  jurors,  officers",  He,  in,  13. 
what  to  do  if  female  guardian  marries,  50 
what  to  do  if  foreign  guardian  is  appointed,  52. 
must  enforce  guardian's  duties,  53-58,  62,  63,  69,  150-1. 

should  not  wait  for  complaint,  in  such  eases.  53. 

why  such  complaint  should  be  filed,  55. 
duties  of,  as  to  investment  of  ward's  funds,  64-69. 
will  do  what,  as  to  non-resident's  property,  72, 
are  governed  by  what  general  principles,  etc.,  73,  74,  103. 
follow  analogies  of  what  statutes,  if  no  provision  made,  74. 
will  authorize  capital  of  ward's  estate  to  be  used  when,  79,  80. 
will  uphold  guardian's,  etc.,  purchase  of  ward's  property,  when,  80-81  n. 
may  allow  fixed  sum  for  ward's  maintenance,  85-6. 
must  allow  costs  ot   litigation,  unless,  86. 

and  reasonable  attorney's  fees,  86. 
should  direct  what  to  do,  as  to  what  uncertain  claims,  86. 
duties   of,  if  one  of  two   or   more   guardians  dies,  resigns,  is  removed, 

etc.,  89. 
governed  b}r  law  for  common  pleas  court,  when,  103,  104  n. 
how  legal  notice  <ri"en  by,  if  law  silent  as  to  manner,  105. 
duties  of,  as  to  service  of  notice  by  publication,  107-110,  232- 
duties  of,  as  to  insane  widow's  dower,  etc.,  Ill,  234. 


3G4  INDEX. 

PROBATE  COURT— PROBATE  JUDGE—  Continued. 
usually  appoints  whom,  as  appraisers,  114. 
certificate  of  appointment  of.  to  appraisers  115. 
appraisers'  report  to.  117.  118. 

must  require  additional  bond,  when  guardian  sells  land,  118,  136. 
must  authorize  guardian  to  sign,  seal,  etc.,  plat,  121. 
must  do  what  as  to  notice,  if  no  paper  published  in  county,  129. 
must  require  what  affidavit,  as  to  private  sa  e  had  of  ward's  property, 

131. 
must  examine  report  of  sale,  and  confirm,  when,  131,  132,  135. 

and  order  deed,  and  mortgage,  when,  131,  235. 
may  authorize  what    lease,  etc.,  of  ward's  land,  how,  139-1436,  235-238, 

248. 
duties  of,  as  to  ward's  taxes,  guardian's  duties  thereto,  etc.,  140-149. 
mustfix  guardian's    compensation,  159-161. 

must  publish  notice  of  filing  <if  accounts,  161. 
is  the  only  medium  for  settling  affair*  between  guardian  and  ward,  163. 
must  settle  guardian's   accounts,  162  n..  166  n. 
may  adjourn  hearing   of  exceptions.  171. 
hearing  and  decision  of,  in  such  case.  171-3. 
must  direct  who  shall  pay  costs,  86,  173,  174. 
must  act  of  its  own  motion  as  to  bond  of  guardian,  173. 
duties,  etc.,  of,  as  to  binding  out  ward  to  apprenticeship,  208-213. 

and  as  to  sending  minor  to  reform  school,  207/,  214. 

and  as  to  sending  girl  to  industrial   home,  207/,  215. 

and  as  to  sending  ward,  etc.,  to  children's  home,  207/,  216-218. 
guardian  ad  litem  must  be  appointed  by,  when,  110,  111,  233,  271. 
must  require  guardian  ad  litem  to  do  his  duty,  233. 

or  must  remove  him,  233. 
must  try  question  of  insanity  of  party,  when  and  how.  233. 
must  do  what  as  to  real  estate  contracts  of  ward's  ancestor,  etc.,  226-8. 

same,  concerning  real  estate  contracts  of  idiots,  lunatics,  etc.,  238- 
242. 

same,  when  idiot,  lunatic,  or  imbecile  is  restored  to  reason.  243. 
duties  of,  as  to  guardian  for  drunkard,  249-252. 
as  to  authorizing  guardian  to  carry  on  business,  251  n.     See  Business; 

Guardian. 
must  do  what,  as  to  trustee's  account  and  settlement,  243,  253-269. 
controls   payment  of  money  by  resident  trustee,  etc.,  to  nun-resident 
trustee,  guardian,  administrator,  etc.,  267-8. 

duties  of,  as  to  trustees,  etc..  security,  in  such  cases,  268. 
appeals  from,  as  to  what,  may  be  taken,  how,  when,  etc.,  202.  165,  261, 

280-283.  _ 
as  to  guardian's  account  and  settlement  in.     See  Account:   Guardian. 
as  to  appointment  of  guardians  by.     See  Guardians,  Appointment  of. 
guardians  are  -appointed  by,  5,  7,  8,  16,  17,  25,  42,  50,  (12,  137,  230. 
should  consult  minor's  best  interests  in,  23,  24,  25. 

also,  the  state  of  minor's  affections,  etc.,  in,  24  n. 

and  parents'  wishes,  when,  24  n. 
should  appoint  minor's  mother,  when,  24  n.,  29-30. 

when  not,  24  n.,  30,  50. 
should  appoint  minor's  father,  when,  29. 
should  select  guardian,  when  minor  fails  to,  at  proper  age,  25. 

but  need   not,  generally,  26. 
should  require  testamentary  guardian  to  give  bond,  when,  27,31. 
testamentary  guardian  nominated  by  will;  but  court  appoints,  5. 


INDEX.  365 

PROBATE  COURT— PROBATE  JUDGE-r- Continued. 

must  approve  guardian's  bond,  31.     Sec  as  to  bond,  below. 

or    mortgage    security   in    lieu    of    freehold    sureties,    31.       See 
Mortgage. 
must  require  a  statement  of  ward's  estate,  41. 

form  of  statement,  41. 
applicant  should  be  appointed,  if,  12. 
journal  entry  Bhould  show  what,  and  why,  45. 
if  female  guardian    marries,  must  appoint  another  guardian,  50. 
must  appoinl  guardian  for  foreign  minoi    when,  137. 
and  of  idiot,  lunatic,  imbecile,  etc.,  230. 
and  of  drunkard,  249. 
as  to  appoinl  it*  mi  of  trustee.     See  Trustee;  Appointment. 
of  non-resident  minor,  idiot,  lunatic,  or  imbecile,  264-269. 
special  duties  and  obligations  of,  to  minors  and  wards. 

it  is  peculiar  province  of,  to  watch  over  and  protect  minor's  interests,  13, 

14,  37,  55,  [66  n..  171 
must  call  guardian  to  account,  when.  1  1.  55,  174. 
must  consult  minor's  best  interest,  in  appointing  guardian,  23,  24,  25. 

and  also  at  other  times,  174. 
should  regard  infant's  affections,  attachments,  etc.,  24  n. 
as  to  bond  of  guardian.     See  Bond;  Guardian. 
must  be  approved  by,  31,  136. 
so  must  mortgage  security  for,  31. 
such  mortgage  recorded  and  filed,  where,  31. 
should  examine  proposed  sureties  on  bond,  33,  :'.4. 

how  done;   form  of  oath,  and  of  affidavit,  in  such  cases,  33.  34. 
can  not  enlarge.1  application  of  bond,  32  n. 
how  to  proceed,  when  mortgage  security  is  given,  ?>9. 
should  be  signed  in  court,  why.  37. 
duties  of  court  as  to,  169-174,  242- 
as  to  removal,  death,  resignation,  etc.,  oj  guardian.     See  Guardian. 
must,  or  should,  remove  guardian  for  what  causes,  6  n.,  29,  52,  53,  54, 

62,  63,  311. 
resignation  should  not  be  accepted  till  full  settlement  made,  49. 
should  exercise  discretion,  as  to  removing  guardian,  57. 
of  one  of  two  or  more,  does  not  affect  powers,  etc.,  of  survivors,  89. 

but  might  necessitate  new  bond,  etc.,  89. 
of  guardian  of  insane,  idiot,  etc.,  232,  243. 
of  guardians  ad  litem,  233. 
same,  as  to  trustee,  258-263,  266,  267. 

as  to  account  and  settlement  of  guardian  and  trustee  in.     See  Guard- 
ian; Account. 
must  be  had  in,  when,  26,  50,  150,  151,  243,  253. 
failure  to  make,  when  court  orders  it,  is  breach  of  bond,  151. 
object  of,  151. 

is  final  between  guardian  and  ward,  unless,  151  n. 
how  made,  151-159,  254- li. 
guardian  should  get  blank  book  for,  152. 

guardian  should  charge  and  credit  himself  with  what,  in,  152-3,  155. 
judge  must  publish  notice  of  filing  of,  161,  256. 
costs  of  notice,  how  paid,  161,  257. 
judge  may  allow  further  time  for  filing  exceptions  to,  161,  257. 

hearing  of  exceptions,  161-2,  256-257. 
judge  must  examine  accounts.   161-2. 


366  INDEX. 

PROBATE  COURT— PROBATE  JUDGE—  Continued. 

may  examine  guardian  or  trustee  filing  accounts  under  oath,  162,  257. 

may  reduce  answers  to  writing,  and  file  them,  162,  257. 
duty  of,  as  to  debt  due  from  ward  to  guardian,  162  n. 
of  guardian  of  idiot,  lunatic,  imbecile,  243,  253-269. 
must  require  a  final  accounl,  257. 

how  filing  of  enforced,  257-260. 
appeal  from  decision  as  to,  261. 
-effect  of  court's  determination  as  to.  261. 
may  be  reopened,  how,  when,  etc.,  261-2. 

as  to  lease  of  ward s  property.     See  Lease. 
as  to  sale  of  ward's  property.     See  also  Sale  ;  Guardian. 
of  personal  property.  94. 
of  real  estate. 

can  not  be  sold  without  approval  of.  66,  95,  234. 

may  order  sale  of,  on  guardian's  application,  95-97,  234. 

petition  for,  must  contain  what.  97-99,  234. 

form  of  petition  for,  99,  202. 

must  order  guardian  to  give  notice  to  ward,  102,  103. 

sale  void  for  want  of  notice,  103  n. 

hearing  of  petition,  for,  113,  234. 

appointing  appraisers.  113. 

laying  off  town  lots.  113. 

must  authorize  platting  of  ground,  etc.,  113. 

order  of  appraisement,  etc.,  113,  114. 

guardian  must  file  additional  bond,  118,  136,  234. 
form  of,  136-7. 

may  direct  where  sale  must  be  held,  125. 

may  set  sale  aside,  when,  126. 

must  confirm  sale,  when,  127. 

and  order  guardian  to  make  deed,  when,  127. 
by  foreign  guardian,  135-137. 

application  for,  made  in  what  court,  135. 

may  require  additional  security,  136-238. 

form  of  order  for,  in  such  case,  136.  240. 
form  of  bond,  in  such  case,  136-7,  241. 
by  guardian  of  idiot,  insane  person,  etc. 

may  be  made,  why,  how,  etc.,  233-235,  238. 
as  to  marriage  of  guardian  or  ward.     See  Marriage;  Ward;  Gcardiax. 
if  female  guardian  marries,  what  to  do,  30,  50,  311. 
consent  of  guardian  as  to  ward's  marriage  must  be  given  before  court, 

or  certified  how,  71. 
judge  may  administer  what  oath  to  witnesses,  in  such  case,  71. 
what  license  must  be  issued,  and  how,  71. 
jurisdiction  of. 

in  guardianship  matters,  etc.,  7,  8-10,  8-9  u.,  17,  21,  250. 

is  exclusive,  as  to  what,  8-10. 

is  concurrent,  10,  97. 

is  constitutional  as  to  guardianship  of  drunkard,  7  n.,  250  n. 

minor's  residence  determines,  17,  21,  17-19  n.,  22. 

is  open  to  inquirj-,  17  n. 

may  be  impeached  when,  21. 

is  concurrent  in  guardian's  sale  of  land,  97. 

once  acquired,  is  exclusive,  97,  265. 

sale  held  void  for  want  of,  97  n.,  103  n. 


INDEX.  367 

PROBATE  COURT— PROBATE  JUDGE—  Continued. 

as  to  committing  minora  to  charitable,  reformatory,  or  punitive  institu- 
tion, 214. 
as  to  trustee  of  non-resident  minor,  idiot,  etc.,  265. 
not  given  over  minors,  by  acts  of  guardian  ad  litem,  271. 
lease  of  ward's  land. 
guardian  may  lease  for  what,  how  long,  etc.,  139-143. 
how  authority  for,  granted  by  court    1  in. 

application  for  power  to  make  long  lease  must  contain  what,  140. 
who  may  unite  in  such  application,  1  10. 
must  contain  what,  140. 
as  to  widow's  dower  in  such  case,  140. 

PROCEEDINGS.     See  Court;  Probate  Court;  Guardian. 
of  court  must  be  recorded,  etc.,  11. 
when  may  be  impeached  collaterally,  when,  21. 
when   not,  22. 

as  to  sale  of  ward's  land  examined  and  confirmed  by  court,  131-2. 
as  to  sale  of  ward's  laud  by  foreign  guardian,  135-137. 

PROCEEDS— 

from  sales,  how  accounted  for,  15:;. 

PROFITS— 

dower  assigned  in  rents,  issues  and  profits,  when,  117. 

PROMISSORY  NOTE.     See  Note;  Instrument  for  Payment,  Etc. 

PROOF.     See  Affidavit. 

of  guardian's  expenditures,  how  made,  63,  161. 

PROPERTY— 

of  minor  can  not  be  controlled  by  parent,  2. 

descends  to  all  the  children,  4. 

sale  of,  by  guardian,  7,  '.)  t. 

guardian  controls,  '2:'>,  24. 

place  of,  helps  to  determine  residence,  18  n. 

which  sureties  must  have,  32. 

of  minors  is  peculiarly  under  probate  judges  protection,  13,  55. 

guardian  is  responsible  for  what,  61  n.     See  Guardian. 

inventory  of,  must  be  made,  62. 

of  non-resident  ward,  how  guardian  of  can  get,  72. 

of  ward,  can  not  be   used  to  benefit  guardian  or  trustee,  77-79. 

of  ward,  can  not  be  purchased  by  guardian,  80,  81. 

nor  by  appraiser. 

such  sales  upheld,  when,  80-81  n. 

remedy  of  ward,  in   such  cases.  81. 
can  not  be  purchased  by  guardian  or  trustee,  80,  81. 

but  such  purchase   sometimes  sustained,  80-8,1  n. 

presumptions   all  against  such  purchaser,  80-81  n. 
purchased  with  ward's   money,  what  about,  81,  84. 

ward's  remedy  in  such  case,  81,  82. 
ward's  labor  and  services  are,  84. 

change  in  value  of,  should  modify  allowance  for  maintenance,  86. 
guardian  may  sell  personal,  when,  94. 
decree  concerning,  does  not  bind  ward,  when,  99  n. 
appraised,  how,  113-118. 
purchaser's  remedy,  if  guardian's  sale  of  invalid,  137-8. 


368  INDEX. 

PROPERT  Y— Continued. 

rights  of  guardian  and  ward  as  to  injury  to,  caused  by  liquors,  221-225. 

guardian  for,  of  drunkard,  may  be  appointed,  249. 

control  of,  may  be  restored  to  drunkard,  when,  252. 

management,  etc.,  of  non-resident  by  trustee,  264,  266-8. 

as  to  survival  of  suits  for  injury  to,  287-8. 

of  ward,  if   used  for  gaming  purposes,  295. 
PUBLICATION.      See  Notice;  Newspapers. 

service  of  notice   or  summons  by.  107-110,  232,  256. 

appointment  of    guardian  ad  litem  must  be  after,  271. 
PUPIL  OF  PUBLIC  SCHOOL— 

rights,  duties,  etc.,  of  ward  as,  205-207/. 
PUNISHMENT.      See  Fine;   Penalty' 
PURCHASE.     See  Property;  Guardian;  Trustee. 
PURCHASER— 

from  guardian   has  a  right  to  presume,  what,  83  n. 

is  not  bound  to  inquire  into  the  state  of  the  trust,  83  n. 

is  responsible  for  application  of  money,  when,  8o,  96  n.,  138  n. 
but  otherwise,  if  he  lias  notice  of  trust,  when,  83  n.,  13^  n. 

action  against,  in  certain  case,  96  n. 

how  widow's  answer  waiving  dower  affects,  111. 

must  give  mortgage  for  deferred  payments,  120,  134. 

remedy  of,  if  sale  invalid,  137,  138. 

acquires  what  kind  of  title  at  guardian's  sale,  120  n.,  138. 

QUESTIONS— 

judge  should  ask  proposed  surety,  33,  34. 

QUIT-CLAIM— 

guardian's  sale  conveys  substantially  only,  120  n.,  138. 

REAL  ESTATE  CONTRACTS— 
of  ward's  ancestor,  etc. 

ward's  rights  and  obligations  under,  226-8. 

guardian's  ditto,  226t8. 
of  idiot,  imbecile,  or  lunatic. 

guardian's  duties,  powers,  etc.,  as  to,  238-9. 

when  additional  bond  will  be  required,  138. 

REAL  ESTATE— 

of  non-resident  infant,  what  about  it,  17. 

of  minor,  parents  have  no  control  over,  2. 

descent  of,  4. 

mortgage  on,  in  lieu  of  freehold  surety,  may  be  given,  31. 

effect  of  guardian's  encumbering.  62  n. 

land  scrip,  acts  of  guardian  as  to,  62  n. 

guardian  may  invest  in.  when.  66. 

or  loan  money  on,  as  security,  65. 
great  diligence  and  care  must  be  used  in  ascertaining  value,  etc,  of  real 

estate  security,  66  n. 
purchased   by  guardian   or  trustee,  with  trust  funds,  who  owns,  etc., 

81,  84. 
descent  of,  at  ward's  death,  88. 
liens  on,  must  be  paid,  how,  95. 
how  improvements  on.  may  be  secured,  140,  143. 


INDEX.  369 

REAL  ESTATE—  Continued. 

proceed.*  from  sale  of,  how  accounted  for,  153. 

how  rights  of  adverse  claimants  to,  decided,  etc.,  196-199. 
sale  of.    See  Sale. 

when   guardian  or  trustee  may  sell,  how  and  why,  66,  95-97,  233-235, 
21  >7. 

petition  for,  must  contain  what,  97-99. 
form  of  petition,  09-102. 

may  be  sold  free  of  insane  person's  dower,  when,  111,  245. 

for  support  of  lunatic  or  idiot  owner,  246. 

conveyance  or  encumbrance  of.  by  drunkard,  invalid  when.  251. 

sold  for  taxes,  redeemable  when,  148,  I  19.  197. 

(management  of,  by  trustee.  264,  267. 

appeal  from  sal<-  of,  may  be  had,  280. 

boundaries  of  ward's,  how  fixed  by  guardian,  286. 

how  may  be  appropriated  tor  public  use,  201-4,  286-7. 
dower  in.     See  Dower. 
lease  of.     See  Lease. 
taxes  on      Se<   Taxes. 
partition  of.     See  Partition. 

what  is  subject  to,  188. 

contracts  as  to,  by  ward's  ancestor,  rights  under,  etc.,  226-228. 

RECEIPT— 

guardian  should  take,  from  ward,  when,  163,  H>5. 

effect  of,  in  such  eases,  Hi:1..  1(1 1  n..  166  n. 

"in  full  of  all  demands,''  from  ward  to  guardian,  not  conclusive,  164  n. 

for  payments  made  in  partition  matters,  1!)::. 

concerning  estate  of  lunatic,  idiot,  etc.,  deemed  void,  when,  231. 

RECORD— 

final   must  be  kept  by  probate  court,  and  how,  10. 

of  accounts  must  be  kept  by  probate  court,  and  how,  11. 

of  bonds,  do.,  11. 

effect  of  recitals  in,  22. 

of  mortgage  security  must  be  made,  31. 

authenticated  copy  of,  required  when,  52. 

showing  that  due  notice  was  served,  effect  of,  103  n. 

of  indenture  of  child's  apprenticeship,  must  be  made,  209. 

failure  to,  releases  child,  209. 
of  guardian  ad  litem's  acceptance  should  be  made,  273. 

REDEMPTION- 

of  land  sold  for  taxes,  etc.,  147-149. 

REFORM  SCHOOL— 

ward  may  be  sent  to,  when,  20~d,  214. 

REGISTERED  GOVERNMENT  BONDS— 

how  interest  of  ward's  collected,  296-296c. 

RELATIVE— 

should  be  appointed  guardian,  when,  24  n.,  30. 
wishes  of,  as  to  ward,  when  to  be  consulted,  90  n. 


370  INDEX. 

RELEASE— See  Dower. 

from  ward  to  guardian,  effects  of,  etc.,  167. 
form  of,  167. 

REMEDY— 

on  joint  bond,  178. 

REMOVAL  OF  GUARDIAN.     See  Guardian;  Probate  Court. 

REMOVAL  FROM  STATE  OR  COUNTY- 
effect  ut'  ward's,  52. 
effect  of  guardian's,  5P>. 

RENTS— 

value  of,  must  be  in  statement  to  court,  41. 

and  iu  inventory,  62. 

penalty  for  not  filing,  62. 
must  also  be  stated  in  petition  for  sale  of  ward's  land,  98. 
dower  assigned  in,  when,  117. 

appraisers'  duty,  in  such  cases,  117,  237,  238. 
when  long  lease  will  increase,  what  to  do,  140,  143. 
improvement  may  be  made  out  of,  when,  143. 
how  accounted  for,  152. 

as  to,  when  land  recovered  from  occupying  claimant,  198. 
as  to]  when  land  of  insane,  idiot,  etc.,  is  rented,  237,  238. 

RENTING  WARDS  PREMISES  FOR  SALE  OF  LIQUORS- 
guardian's  liability,  etc,  221-225. 
ward's  liability,  and  rights,  etc.,  221-325. 

REPAIRS— 

guardian  must  see  to,  90,  162  n. 

how  charged  in  guardian's  account,  153,  157. 

REPORT- 

as  to  sale  of  ward's  real  estate. 

of  appraisers,  116,  117. 

of  guardian,  that  a  sale  was  made,  127. 

of  guardian,  that  no  sale  made,  130. 

of  guardian,  as  to  private  sale,  1.31. 
as  to  lease  of  wards  real  estate. 

of  freeholders  advising  for  or  against,  142,  143,  143a,  1436. 

RESIDENCE— 

,       of  minor. 

must  be  correctly  determiued,  why,  17,  21,  22,  23. 

how  determined,  17-23. 

statutory  rules  for  determining,  19. 

guardian  for  non-resident,  17. 

may  be  changed,  how,  18. 

change  of,  if  made,  must  be  in  good  faith,  18. 

constructive  residence  effectual,  18  n. 

of  illegitimate  child,  how  determined,  19  n. 

how  residence  lost  or  changed,  17,  19,  20. 

of  guardian. 

must  be  where,  23. 

effect  of  changing  it,  23,  53. 


INDEX.  371 

RESIDENCE—  Continued. 

testamentary  guardians  not  subject  to  same  rules.  23,  27. 
as  affecting  taxes,  144  u. 

if  unknown,  service  of  summons  by  publication   may  be  bad,  181 
of  defendants. 

copy  of  legal  notice  or  summons  may  be  left  at,  when,  10G. 

must  be  sent,  to,  when,  107. 
affidavits  concerning,  as  to  service  of  notice  by  publication,  107,  108. 

RESIGNATION— 

of  guardian. 

does  not.  end  surety's  liability.  33  n. 
may  resign  for  whai  reasons,  49. 

but  must  first  fully  settle  mid  account,  49. 
of  trustee. 

account  must  be  filed,  257. 

RETURN— 

of  service  of  legal  notice,  bow  made,  etc.,  106,  107. 

ROAD  LAWS— 

as  affecting  guardian  and  ward,  201-Jni 

ROADS— 

rights,  duties,  etc.,  of  guardian  and  ward,  as  to,  201-204. 

ROMAN  EMPIRE— 

laws  of,  affect  us  how,  6. 

RULES— 

for  determining  residence  of  minor,  17-23. 

for  determining  compensation  of  guardian,  159. 

RULE— 

of  proper   diligence    of  guardian,   60-61    n.,  66   n.,  67  n.    74    75    76 

74-76  n.,  86. 
every    one  presumed  to    know  the    law,  as    applied    to  guardians  and 

trustees,  76 

SALE— 

of  intoxicating  liquors,  how  ward's  and  guardian's  rights,  liabilities 

etc.,  affected  by,  221-225. 
wife  of  insane  man  may  sell  her  real  estate,  when  and  how,  246. 
of  real  estate  by  drunkard,  invalid  when,  251. 
of  ward' s  properly.     See  Guardian. 

can  not  be  made  to  guardian  or  trustee,  80,  81,  82. 

such  sales  sustained  sometimes,  80,  81  n.,'82  n. 
by  guardian,  of  ward's  personal  property,  94.' 
court  may  order,  on  guardian's  application,  95-97. 
petition  for,  must,  contain  what,  97-99. 
form  of  petition  for,  99-102. 
must  order  guardian  to  notify  ward,  102,  103. 
sale  void  for  want  of  notice,  103  n. 
assignment  of  dower,  97,  111,  112,  234. 
hearing  of  petition  for,  113. 
appointment  of  appraisers,  113 
appointment  of  guardian  ad  litem,  110,  111,  271-9. 


372  INDEX. 

SALE —  Continued. 

laying  off  land  into  town  lots,  113. 
•when  town  lots  are  lain1  out,  121. 

platting  of  ground  so  laid  out,  etc.,  113. 

plat  of,  how  signed  sealed,  acknowledged,  etc.,  121. 
order  of  appraisement,  113,  114. 
guardian  must  file  additional  bond,  118. 
order  of  sale,  its  requirements,  120,  121. 
deferred  payments,  secured  bj-  mortgage,  120. 
the  effect  of  not  selling  all  land  intended  to  be  sold,  120  n., 
title  acquired,  same  as  by  quit-claim  deed,  120  n.,  138. 

on  what  condition,  121. 
private  sale  of,  may  be  made  when,  121. 
how  decree  for  private  sale  obtained,  123,  124. 

form  of  application  for,  123. 

oath  to,  123. 

affidavits  in  support  of,  124. 
precipe  for  order  of,  124. 
notice  of,  125. 

where  sale  must  be  made,  unless,  125.  192. 
guardian  may  subdivide  land,  and  sell  in  parcels,  but,  121  n.,  125-6. 

best  to  get  order  of  court,  to  subdivide,  126. 

effect  not  realizing  two-thirds  of  appraised  price,  in  such  case,  126. 
how  conducted,  126.  192. 

appraiser,  attorney,,  executor,  etc.,  can  not  buy  at,  126,  126  n.,  127  n. 
report  of,  by  guardian,  127. 

what  affidavit  should  be  attached  to  report  of,  131. 
court  will  confirm  when,  127. 

if  no  sale  made,  for  want  of  bidders,  what  to  do,  127,  128,  129-131. 
return  of  order  of  sale  noted  on  execution  docket.  128. 
report  of  guardian,  when  no  sale  made,  130. 
confirmation  of,  131,  192. 

form  of  order  of  confirmation,  132. 
when  sale  is  void,  for  want  of  jurisdiction,  131  n.,  97  n.,  103  n. 
taxes  and  penalties  must  be  paid  out  of  proceeds  of,  132. 
by  foreign  guardian,  135-137. 

application  for,  must  be  made  in  what  court,  135. 

guardian  for  foreign  minor  must  be  appointed  here,  to  make,  when,  137. 
purchaser's  remedy,  if  sale  invalid,  137. 
kind  of  title  guardian  conveys,  138,  120  n. 
when  long  lease  may  render  unnecessarj',  140,  143. 
for  taxes,  effect  of,  etc.  145-148. 

must  be  had  for,  when.  146. 
in  partition  proceedings,  190-194. 
of  idiot,  insane  x>erson,  imbecile. 
how  made,  why,  etc.,  233-235. 
appeal  from,  may  be  had.  280. 
of  entailed  estates,  etc. 

guardian's  powers,  duties,  etc.,  as  to,  generally,  289-291. 

SCHOOL.     See  Education;  Ward. 
SEALtf— 

to  what  extent  abolished,  38  n. 

SECUE1TIES.     See  Bond;  Investment. 
must  be  collected,  when,  GO  n. 

guardian  can  not  loan  money  on  personal,  61  n.,  66  n. 
in  what,  guardian  may  invest,  65-68. 
f 


INDEX.  373 

SERVICE— 

of  notice  or  summons.     See  Notice;  Ward. 

SERVICES.     See  Compensation. 

SETTLEMENT,  LEGAL— 

effect  of,  as  to  appointment  of  guardian,  22,  23. 

SETTLEMENT  OF  ACCOUNTS.     See  Accounts. 
must  be  made,  when,  26,  50,  150,  163,  243. 
is  final,  when,  165,  166  n. 
may  be  reviewed,  when,  165-6. 
can  not  be  attacked  collaterally,  when,  166  u. 
of  trustee's  accounts,  253-269. 

appeal  from  probate  court's  determination  as  to,  261. 

force  and  effect  of,  by  probate  court,  261. 

may  be  opened  up,  when,  by  whom,  how,  261-2. 

mistake  or  error  in,  corrected,  when  and  how,  262. 
appeal  from  settlement,  may  be  had,  280. 
guardian  should  have  a,  with  ward,  when,  163. 

SHERIFFS- 

must  serve  writs,  etc.,  in  probate  court,  13,  56,  103,  104,  106,  170,  2J32. 

fees  of,  in  such  cases,  13. 

directions  to,  as  to  serving  notices,  107. 

can  not  buy  ward's  land,  when,  126,  126  n.,  127  n. 

duties  of,  in  partition,  189-194. 

liability  of,  and  of  his  sureties,  in  partition,  193. 

SIDEWALKS— 

certain  rights,  duties,  etc.,  of  guardian  and  ward  as  to,  203,  201-204. 

SISTER— 

rights  of,  as  to  attendance  at  school,  205. 

SPECULATION— 

guardian  or  trustee  can  not  use  trust  fund  in,  78,  79. 

STATE— 

effect  of  guardian's  removal  from,  51. 

effect  of  ward's  removal  from,  52. 

guardian  may  invest  in  bonds  of,  when,  66,  68. 

STATEMENT  OF  WARD'S  ESTATE— 
must  be  filed  in  court  by  applicant,  41. 
must  be  verified  by  affidavit,  41. 

form  of,  41. 
affidavit  to,  42. 
in  case  of  sale  of  land  of  insane  person,  idiot,  etc.,  234. 

STATUS— 

of  married  woman  under  common  law,  297-8. 
same,  under  Ohio  laws,  297-8. 

STATUTES— 

modify  married  woman's  common  law  rights  in   Ohio  to  what  extent 
297-8. 
25 


374  INDEX. 

STATUTORY  PROVISIONS— 

override  decisions,  etc.,  51. 

do  not  point  out  all  of  guardian's  and  trustee's  duties,  73,  74. 

concerning  executors,  are  followed  as  to  guardians,  to  what  extent,  74. 

STEP-FATHER— 

may  change  ward's  residence,  when,  18. 

must  maintain  and  educate  his  step-children,  when,  88. 

effect  of  joint  release  by,  and  others,  164  n. 

STOCKS.     See  Estate;  Securities;  Bonds. 

of  building  associations,  may  be  paid  to  guardian,  when,  69. 
"  government  stocks,"  66  n. 

conveyed  to  insane  person  in  lieu  of  dower,  when,  244-5. 
as  to  railroad,  owned  by  guardian,  294. 

STREETS— 

rights,  duties,  etc.,  of  guardian  and  ward  as  to,  203,  201-204,  278. 
duties  of  guardian  ad  litem  as  to,  278,  203. 

SUIT.     See  Civil  Action  ;  Sale. 

guardian  must  defend,  against  ward,  64,  179. 

foreign  guardian  may  get  property  of  non-resident  ward  by,  72. 

guardian  or  trustee  may  maintain,  where,  to  get  directions  from  court,  72. 

on  guardian's  bond  to  recover  money  lost  in  business,  etc.,  79. 

who  must  pay  costs  of,  86. 

on  uncertain  claims,  86,  154,  155,  158. 

guardian  for  the.     See  Guardian  ad  litem. 

can  not  be  had  between  guardian  and  ward,  until,  162,  166  n. 

on  guardian's  bond,  how  brought,  by  whom,  when,  etc,  178,  179, 
180,  181. 

extent  of  remedy  by  suit  on  bond,  179-184. 

guardian  liable  to  ward  on  what,  179,  180. 

guardian  may  bring,  in  his  own-name,  182. 

for  partition,  how  and  where  brought,  etc.,  186,  186-195. 

by  tenant  in  common,  parcener,  etc.,  in  partition,  195. 

for  recovery  of  land  held  adversely,  196-199. 

for  removing  ward  or  child  from  house  of  refuge,  220. 

for  damages  caused  by  intoxicating  liquors,  etc.,  221-225. 

for  enforcing  real  contracts  of  decedent,  226-228. 

by  guardian  of  idiot,  insane  person,  etc.,  232-3. 

by  insane  person,  232-3. 

trustee  of  non-resident  idiot,  etc.,  liable  to,  266. 

justice  of  the  peace  can  not  try,  when,  if  related  to  guardian  or 
ward,  287. 

for  libel,  malicious  prosecution,  assault,  nuisance,  misconduct  in  office, 
mesne  profits,  money  due,  injury  to  property,  and  others,  as  to  sur- 
vival of,  287-8. 

must  be  brought  on  note,  etc.,  when,  if  surety  gives  notice  to  do  so,  288. 
guardian's  duty,  liability,  etc.,  in  such  case,  289. 

SUMMONS.      See  Notice. 

appointment  of  guardian  ad  littm  must  be  after,  271. 

SUPERINTENDENT— 

of  children  s  home,  duties  of,  as  to  ward  or  minor.  216. 
of  roads,  duties,  etc..  of,  as  to  ward,  etc.,  204. 
of  schools!,  duties,  etc.,  of,  as  to  ward,  etc.,  205-207e. 


INDEX.  375 

SUPPORT.     See  Ward;  Guardian. 
ward's  land  may  be  sold  for,  95. 
ward's  land  may  be  leased  for,  235. 

SURETIES  ON  GUARDIAN'S  BOND— 
qualifications  of,  30,  31.  32.  243. 
number  of,  33. 

may  be  examined  under  oath,  33. 
oral  examination  of.  33 

form  of  oath  for  oral  examination,  33. 
what  questions  to  ask  them,  33,  34. 
affidavit  of,  should  be  taken,  34. 

form  of  such  affidavit,  34. 
liabilities  of,  generally,  172  n.,  177,  178,  178  n.,  179  n.,  180. 
liabilities  of,  last  how  long,  33  n. 

court  can  not  enlarge  nor  change  liabilities  of,  32  n. 
bond  good  if  signed  in  blank   36. 

as  to  signers'  liabilities,  rights,  etc.,  in  such  cases,  36. 
exceptions  as  to,  may  be  filed,  etc.,  169. 

notice  of,  169. 
additional,  may  be  required,  172. 
may  be  released  from  bond,  how,  etc.,  174-8. 
removal  of  guardian  releases,  as  to  future  acts,  177. 
estate  of  deceased,  liable  when,  177  n. 
may  be  made  parties  to  a  judgment,  when,  181. 
of  married  woman  guardian,  230. 
on  notes,  etc. 

certain  rights  of,  288. 

may  be  released  by  what  acts,  288. 

may  require  creditor  to  sue,  288. 

must  give  what  notice,  and  how,  in  such  case,  288,  288-9  n. 

SUSPICION— 

should  cause  investigation,  when,  55. 

TAXES— 

dower  assigned  clear  of,  117. 

must  be  paid  out  of  proceeds  of  sale,  132,  146. 

guardian  must  pay,  144-147. 

and  list  ward's  property  for,  144,  146. 

penalty  for  neglect  to,  145. 

must  be  listed  where,  145  n.,  147. 

when,  147. 

how,  147,  144  n.,  146-7  n. 
payment  of,  by  guardian    enforced  how,  147,  148. 
charged  in  account,  how,  153. 

lands  sold  for,  may  be  redeemed  how  and  when,  148,  149. 
guardian  paid  for  his  time,  trouble,  etc.,  as  to,   160-161. 
rights  of  purchaser  under  sale  for,  196-7.     See  Tax  Title. 

TAX  TITLE— 

of  ward,  guardian  may  release  when,  148. 

effect  of  offer  to  release,  if  not  accepted,  148. 

ma}-  be  redeemed,  when,  148-9. 

general  validity  of,  148,  149. 

becomes  good,  when,  149. 

proceedings  against  a  person  in  possession  under,  197,  196-199. 

TEACHERS— 

duties,  etc.,  of,  as  to  waid,  etc.,  207/. 


376  INDEX. 

TEMPORARY  ABSENCE— 

does  not  change  residence,  18,  19. 

nor  affect  jurisdiction  of  court  to  appoint  guardian,  18  n. 

TENANT.     See  Occupying  Claimant. 

may  be  evicted  from  land  lately  ward's,  how,  138. 
rights  of,  under  lease  of  ward's  lands,  143,  235. 

rights,  duties,  etc.,  of,  as  to  lease  of  ward's  premises  for  sale  of  liquors, 
224. 

TENANT  FOR  LIFE— 

rights  of,  in  partition  proceedings,  194. 
rights  of,  in  sale  of  entailed  estates,  289-291. 

TITLE— 

abstract  of,  must  be  furnished,  when,  31,  39. 

conveyed  by  guardian's  sale,  same  as  by  quit-claim,  120  n. 

if  invalid,  purchaser's  remedy,  137. 

tax.     See  Tax  Title. 

validity  of,  can  not  be  questioned,  in  proceedings  to  redeem  from  tax 

sale,  149  h. 
adjusted  between  adverse  claimants  to  land,  196-200. 

TOWN  LOTS.     See  Lots. 

TOWNSHIP  TRUSTEES. 

duties  of,  as  to  binding  out  ward,  209. 

duties  of,  as  to  sending  ward  or  minor  to  children's  home,  217. 

as  to  road  material  from  ward's  land,  204. 

TRADE— 

can  not  be  carried  on  with  trust  funds,  77-79. 

penalty  and  liability  of  guardian  or  trustee,  if  this  is  done,  78,  79. 

TRANSCRIPT— 

must  be  filed  when,  etc.,  in  case  of  appeal,  281. 

TRUANTS  AND  TRUANT  OFFICERS— 
provisions  as  to,  2076-207/. 

TRUST— 

will  result  to  ward  or  other  beneficiary,  when,  81,  84. 

created  by  will,  deed,  etc.,  253. 

probate  court  determines  as  to  execution  of,  257. 

TRUSTEE— 

notes  concerning  duties,  liabilities,  etc.,  of,  60,  61,  63,  64,  67. 

must  keep  clear  and  accurate  accounts,  or,  63  n. 

should  lend  money  on  what  kind  of  security,  64  n. 

are  liable  for  interest  on  trust  funds,  when,  66-67  n.,  79,  81,  84. 

may  invest  funds,  how,  68,  66  n. 

may  receive  ward's  building  association  stock,  when,  69. 

may  maintain  civil  action,  to  get  directions  from  court,  72-3. 

general  principles  governing,  stated  and  summarized,  73,  74,  73-90. 

as  to  deposits  of  money  by,  in  bank,  60  n.,  74,  74-76  n. 

rule,  as    to  proper   care   and   diligence  of,  74,  75,  76,  60-61   n.,  66  n 

67  n.,  74-76  n. 
exonerated,  if  advice  of  counsel  followed,  76. 
are  responsible  for  money  paid  to  wrong  person,  76-7. 
can  derive  no  profit  from  use  of  trust  fund,  77,  78. 


index.  377 

TRUSTEE—  Continued. 

remedy   of   beneficiary  against,  if  he  speculates   with,  or  uses  trust 
fund,  78,  79,81. 

can  not  carry  on  trade  of  decedent,  except,  78  n. 

can  not  purchase  property  he  holds  in  trust,  80,  81,  12G  n. 

when  such  sale  may  be  upheld,  80-81  n. 
if  he  purchases  property  with  trust  funds,  what,  81,  84. 
must  do  what,  as  to  taxes,  146,  147. 
manner  of  charging;  interest  against,  153  n. 
must  pay  cost  of  notice  of  filing  account,  when  and  how,  161. 
to  defend  insane  person,  must  be  appointed,  when,  etc.,  2:;:;. 

duties  ot  such,  233. 
of  foreign  idiot,  lunatic,  etc.,  powers  of,  etc.,  242,  253-269. 

same,  of  trustee  appointed  by  will,  deed,  or  competent  authority 
253-2(1!).  J' 

such  trustee  must  render  accounts,  when,  253-257. 

how,  254-2."i7. 

must  be  sworn  to,  254. 

vouchers  as  to,  must  be  filed,  254. 

form  of  account,  254-6. 

how  compelled  to  file,  256,  257-261. 

notice  of  filing,  256-7. 

must  pay  what  costs  as  to,  257. 

examined  under  oath  as  to,  257. 

probate  court  decides  all  matters  as  to,  257. 

when  trustee's  ex'r  or  adm'r  must  file,  257. 
settlement  of  accounts  of,  force  and  effect  of,  etc.,  261. 

appeal  from,  261. 

when  may  be  reopened,  why,  by  whom,  effect  of,  etc.,  261-2. 
compensation  of,  263. 

when  court  may  accept  resignation  of,  or  remove,  263. 
appeal  from  settlement  of  account  of,  280. 
appeal  from  appointment  of.  280. 
to    take    charge   of  proceeds   of  sale    of  entailed,    conditional     etc 

estate,  290,  291.  ' 

as  to  testifying  by,  or  against,  in  certain  cases.  291-2. 
may  receive  estate,  assets  in  kind,  293. 
rights  of,  as  to  railroad  stocks  held  by  him,  294. 
married  women  may  be, to  what  extent,  30,  298  et  sen. 
as  tu  appointing,  30,  299,  312. 
of  non-resident  minor,  idiot,  lunatic  or  imbecile. 
how,  why,  etc.,  appointed,  264. 
how  appointment  of  brought  about,  264. 

application  for,  265. 
journal  entry  of  appointment,  265. 
duties  of,  264,  266-9. 
jurisdiction  of  court  appointing,  265. 
bond  of,  265-6. 

must  settle  with  the  court.  266. 
may  be  removed,  sued,  etc.,  266-7. 
may  lease  land,  267. 
may  sell  land,  267. 
holds  office,  how  long,  267. 
must,  pay  over  trust  money,  etc.,  to  whom,  267. 
may  loan  trust  money,  when,  how,  etc.,  66'  n.,  269. 
of  township.     See  Township  Trustees. 

of  industrial  home,  duties,  etc.,  of,  as  to  girl  sent  to,  215,  216. 


378  INDEX. 

TRUSTEES—  Continued, 
of  children's  homes. 

duties,  etc.,  of,  as  to  ward  or  minor  sent  to,  216-218. 
act  as  guardian  of  inmates,  218. 
may  apprentice  inmates,  218. 
may  discharge  inmate,  when,  218. 

TRUST  FUND— 

must  he  invested  how,  68,  66  n. 

can  not  be  used  by  guardian  in  any  way  for  his  benefit,  77-82,  84. 

TUITION.     See  Education;  Ward. 

TUTOR— 

under  civil  law  had  care  of  person,  6. 

UNITED  STATES— 
bonds  of     See  Money.  _ 

guardian  may  invest  in,  when,  66,  68. 

how  guardian  may  collect  interest  on  registered,  and  how,  292-5. 

trustee  may  invest  in,  when,  290. 

UNSUITABLE  PERSON— 

when  parent  is,  custody  of  child  is  removed  from,  6  n.,  23,  24  n. 

VERIFICATION.     See  Affidavit;  Oath;  Pleadings; 
to  widow's  answer,  filed  by  guardian,  not  required,  112. 
form  of,  when  filed  by  widow,  112. 

of  guardian's  expenditures,  must  be  made  how,  63,  161. 
to  applicant's  statement  of  ward's  estate,  42. 
to  petition  for  leave  to  sell  ward's  real  estate,  102. 
to  petition  for  leave  to  lease  ward's  real  estate,  142,  237. 
to  petition  to  compel  guardian  to  pay  money,  183,  184. 
to  petition  as  to  real  contract  of  ward's  ancestor,  etc.,  228,  240. 
to  petition  as  to  transfer  of  ward's  money  to  foreign  guardian,  268. 

VOUCHERS— 

expenditures  must  be  verified  by,  63,  161,  163. 

concerning  estate  of  lunatic,  idiot,  etc.,  deemed  void,  when,  231. 

must  be  filed  with  account,  163,  254. 

WARD.     See  Minor;  Guardian;  Parents. 
definition  of,  2. 

position  of,  like  that  of  child,  to  some  extent,  2. 
rights,  of,  generally  under  English  guardianships,  3-5. 
custody  of,  not  changeable  by  habeas  corpus,  8-10  n. 
name  of,  etc.,  must  be  entered  in  docket  in  probate  court,  10. 
need  not  be  present,  when  guardian  for  is  appointed,  17  n. 
effect  of  marriage  of,  50.    • 
effect  of  removal  of,  from  the  state,  52. 
may  choose  another  guardian,  when,  25,  26,  58. 

notice  to  guardian,  in  such  case.  58. 
estate  of,  managed  by  guardian,  62,  68-9,  84  n. 
parents  of,  have  no  control  over  estate  of,  2,  3. 
suits  of,  who  sees  to,  64. 

right  of,  to  be  educated,  60,  64,  65  n.,  69.  70,  85,  95,  140,  143. 
a  journey  by,  adjudged  not  necessary,  69  n. 
who  has  custody  of,  and  must  educate,  explained,  70. 


INDEX.  379 

WARD—  Continued. 

can  not  marry  without  guardian's  consent,  when.  70. 

how  such  consent  must  be  witnessed  and  certified,  71. 

form  of  consent,  and  certificate  thereto,  72. 

when  promise  to  marry,  etc.,  constitute  marriage,  70-71  a. 

when  marriage  of,  void,  70  n.,  71  n. 
rights  of,  as  to  money  in  bank,  if  bank  fails,  60— Gl  n.,  67  n.,  74,  75,  74- 

76  n. 
rights  of,  if  guardian   or  trustee  in  any  way  use  trust  fund,  77-79. 

or  purchase   property  of,  80,  81. 

or  purchase  property  with  money  of,  81,  82. 
contracts  of,  with  guardian,  how  treated,  82. 
gifts  by,  to  <_ru;inli;m,  how  treated,  82,  83. 
interests  of,  carefully  guarded  by  court,  13,  14,  23-25,  77-85,  and  notes, 

113,  142. 
as  to  labor  and  services  of,  84-85. 

must  contribute  to  his  own  maintenance  by,  when,  84,  90  n. 
fixed  sum  for   maintenance  of,  may  be  allowed,  85-6. 
if  ward  dies,    what  must  be  done,  51,  88. 
how  estate  of,  then  descends.  88. 
parents  must   maintain,   when,  87,  88. 

when  not,   87,  88. 

relative  amount  of  estates  decides,  87. 
can  not  manage  nor  dispose  of  his  estate,  89. 
guardian's  duty  as  to  character,  morals,  etc.,  of,  89,  90. 
should  be  taught  trade,  profession,  or  business,  90. 
guardian  may  sell  property  of,  how  and  why,  94. 
debts  of,  must  be  paid,  how,  95. 
as  to  service  of  notice  or  summons  upon,  103-105. 
as  to  defense  of,  by  guardian  ad  litem,  110,  111,  233,  244,  271,  273-9. 
collusive  assignment  of  dower  will  not  prejudice,  112. 
warranty  by  guardian,  does  not  bind  in  sale  of  land    120  n. 
lease  of  real  estate  of,  how  and  why  made,  etc.,  139-143. 
as  to  taxes  on  property  of,  144-148. 

guardian  should   keep  a  separate  account  with  each,  152. 
guardian  should  charge,  and  credit,  with  what,  152-160. 
guardian's  compensation  out  of  estate  of,  how  computed,  160. 
can  not  sue  guardian,  nor  be  sued  by,  until,  162. 
how  accounts  of,  with  guardian  settled,  when,  etc.,  163. 
how  guardian  must  treat,  at  such  time,  163-4  n. 
must  give  guardian   a  receipt,  when,  163,  165. 
effect  of  receipt  of,  to  guardian,  164  n.,  166  n. 
effect  of  release  of,  to  affect  family  arrangement,  164  n. 
effect  of  release  of,  to  guardian,  167. 
may  open  final  settlement  when,  165-6. 

stands  in  relation  of  creditor  to  his' guardian,  when  of  age,  166  n. 
may  sue  iruardian,  when,  180. 
estate  of,  affected  by  partition  laws,  186-194. 
rights,  obligations,  etc.,  of,  as  to  occupying  claimants,  196-200. 
rights,  obligations,  etc.,  of,  as  to  roads,  streets,  etc.,  201-204. 
rights,  obligations,  etc.,  of,  as  to  public  schools,  205—207/,  209. 
may  be  bound  out  to  service  or  apprenticeship,  when,  how,  etc,  208-213. 

215,216,218,220. 
may  be  sent  to  reform  school,  when,  214. 

or  to  industrial  home,  when,  till  when,  why,  etc.,  215,  216. 

or  to  children's  home,  when,  till  when,  why,  etc,  216-218. 


380  INDEX. 

WARD—  Continued. 

or  to  industrial  school,  when,  etc.,  216-218. 

or  to  house  of  refuge,  when,  how,  why,  etc.,  218-220. 
who  may  apply  for  such  ward's  release,  how,  etc.,  220. 
rights  of,  etc.,  as  to  sale  of  intoxicating  liquors,  221-225. 

premises  of,  must  not  be  rented  nor  used  for,  224. 

guardian's  liability,  in  such  case,  224,  221-225. 
property  of  insane,  may  be  sold,  when,  how,  etc.,  232-235. 

or  leased  or  improved,  how,  for  how  long,  etc.,  235-238. 
how  dower  of,  etc.,  may  be  divested,  238-242. 
children  of  drunkard  become  wards,  when,  249. 
non-resident,  rights  of,  17,  285. 
how  boundaries  of  land  of,  fixed  by  guardian,  28G. 
how  lands  of.  affected  by  board  of  public  works,  286—7: 
rights  of,  not  affected  by  admissions  of  guardian  ad  litem,  275,  276. 
rights  of,  when  is  an  adopted  child,  287. 
can  not  try  case  as  J.  P.,  when,  287. 

rights,  etc!,  of,  as  to  sale  of  entailed,  conditional,  etc.,  estates,  289-291 
identity  of,  shown  how,  for  collection  of  U.  S.  interest  of,  294-5. 

WARRANTY— 

by  guardian,  effect  of,  in  sale  of  land,  120  n. 

WASTE— 

of  ward's  real  estate,  how  stopped  sometimes,  95. 

guardian  liable  for,  when,  179. 

pay  for,  when  land  recovered  from  occupying  claimant,  198. 

WIDOW— WIDOWER— 

court  may  assign  dower  of,  in  guardian's  sale,  97,  111. 
proceedings  as  to  dower  of,  99,  111,  112,  194,  293. 
guardian  of  insane,  may  act  for,  111,  234-5. 
may  waive  dower,  and  claim  money  in  lieu  of,  111,  112. 
heir's  remedy  against,  for  fraudulent  dower,  112,  113. 
dower  of,  in  partition  proceedings,  assigned  how,  etc.,  194. 
dower  of,  if  insane,  234-5. 

WILL— 

appointment  of  guardian  by,  5,  26,  27  n.,  29. 

and  of  trustee  by,  253. 
how  such  will  to  be  executed,  27  n. 
grandparent  can   not  appoint  guardian  by,  27  n. 

nor  can  uncle  so  appoint  for  children  of  nephew.  27  n. 
guardian  may  be  excused  from  giving  bond  by,  27,  31. 
as  to  authenticated  copies  of,  and  filing  same,  etc.,  243  n. 

WIFE.     See  Married  Woman;  Dower. 
may  be  guardian,  when,  30,  230. 
liabilities,  etc.,  of,  in  such  case,  230. 

rights,  etc.,  of,  in  sale  of  land  of  idiot,  insanp  person,  etc.,  Ill,  234. 
may  carry  on  husband's  business,  how.  251  n. 
as  to  right  of  generally  to  be  appointed  guardian,  30,  297-312. 
under  control  of  husband  in  eyes  of  law,  298,  300-307. 

WITNESSES— 

fees  of,  in  probate  courts,  13. 

in  case  of  ward's  marriage,  duties,  of,  etc.,  70,  71. 

in  case  of  ward  beina:  sent  to  reform  school,  214. 


WM.  F.  MUCHMORE,  . 
—  LAWYER,— 

Room  47,  Wiggins  Block, 

CINCINNATI,  O. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


MAY  2  6  1970 
DEC  2  0  1975 


Form  L9-Series4939 


